As we have discussed before, marijuana DUIIs have risen in Oregon since the legalization of recreational marijuana. With the passage of Ballot Measure 110 (see prior blog post), it is possible that other non-alcohol DUIIs may increase in the coming months and years. For many of these non-alcohol DUIIs, the offender is eligible for the DUII Diversion Program, which allows defendants to voluntarily participate in classes and follow certain requirements in exchange for a dismissal of the DUII charge. However, one of the requirements to enter the DUII Diversion Program is entering a plea of “guilty” or “no contest” to the DUII charge. This guilty plea can affect individuals who attempt to purchase a firearm.
To illustrate this, consider the following hypothetical scenario. John Hunter is arrested for driving under the influence of marijuana. This is his first ever criminal charge, and his driving record is clean. After considering his options, John decides to enter a plea of guilty and enter the diversion program. He pleads guilty and admits to driving under the influence of marijuana – after all, he had in fact been using recreational marijuana and drove too soon after his last use. He enters the Oregon DUII diversion program, starts drug and alcohol treatment, and is staying completely sober.
A few months after entering the diversion program, it is hunting season again and John wants to buy a new hunting rifle. He goes to his favorite sporting goods store and begins to fill out ATF Form 4473 (Firearms Transfer Record). This is not the first time John has purchased a firearm, and he has passed the background checks without issue in the past. John fills out the first few questions easily. He then arrives at question 21e. Question 21e states: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” Now, John knows he needs to tell the truth—lying on a federal form can result in criminal charges, and he has no intention of going down that road. What happens if he checks “yes”?
It is in these types of scenarios in which pleading guilty to a marijuana DUII can make purchasing a firearm more complicated. Most recreational marijuana users in Oregon do not have a record of marijuana use because it is not a crime in Oregon. Though using recreational marijuana does make one a “unlawful user of marijuana” for purposes of the Firearm Background Check, there is no “official record” of drug possession or drug use crimes that would show up on a firearm background check. Therefore, the “recreational user” is not “flagged” when submitting the background check. However, that is not the case for individuals charged with a marijuana DUII. With a criminal charge of driving under the influence of marijuana, there is now a public record that clearly states that the person allegedly uses (or used) marijuana. If the applicant has entered a guilty plea to a marijuana DUII, even if it is to enter the diversion program (and have the case dismissed), that is an admission in court that the applicant has used marijuana contrary to Federal law. Again, even though John’s recreational use of marijuana is perfectly legal in Oregon, it is still illegal when he goes to purchase a new gun. When an applicant (John) submits a Form 4473, the application will almost certainly be “delayed,” law enforcement will see the guilty plea and will almost certainly contact the applicant to ask additional questions.
It has long been a public safety adage that “drinking and driving don’t mix.” It appears that “recreational marijuana and gun rights don’t mix” either. Until there is a change at the Federal level, be aware that your recreational marijuana usage may inadvertently impair your ability to purchase any firearm. More importantly, if you are charged with a non-alcohol DUII, you need legal representation and should hire an attorney. At Gunn & Gunn our attorneys have deep experience in DUII defense, Criminal Defense, and Gun Rights and can help you navigate through the complexities of your case. Give us a call!