Recommendations for firearms and criminal attorney: Problem with daughter's chl app.

tkdguy · Mar 17, 2013

I need some guidance from an attorney familiar with the chl application and prior problematic histories. I just learned this, but several years ago my then 29 year old daughter was caught as a federal employee offerinbg a "joint" to a federal employee when she worked at Federal Park several summers ago. She was arrested, spent two days in jail, fined $1000.00 and lost her fed job for the summer. She was offered a diversion program for 1 year that she successfully completed and the fed judge expunged her record. She plead guilty to the charge, but was never convicted in lieu of her successful probation. Yea. I just learned of this when she was almost finished with her chl application.

That chl application askes two questions related to conviction of an offense involving controlled substances (yes or no) and the second question, related to if you have been subject to a court-ordered diversion program for controlled substances. (yes or no).

So, I need an attorney to advise on how to properly respond to the questions. Her records are expunged from public review I think, but the fed records still exists.

My personal thought would be to answer yes on both, and attach the fed paper work which expunges the record and notes her completion of the year long diversion.

Do you have any attorneys that are very familiar with these problems that you can recommend? thanks.

1stklass · Mar 17, 2013

Oh, thats a sticky one. I have heard a judge say that once it is expunged it is as if it never happened and you can legally answer no to any question asking if you have been convicted. But i guess even judges can be wrong... didnt seem to work when the judge told me my speeding ticket was expunged but the insurance company said heck no! we are still charging you through the nose for it!

I would think the answer would be NO for question 1, and Yes for question 2??? If you call the state bar you can get an attorney referral for your case and the initial question could be answered for a set amount of 30 or 35 dollars for your first visit, the first half hour or hour i think.

One-Eyed Ross · Mar 17, 2013

Well, I know that for my son, getting caught at the age of 13 with just some crumbs of leafy green, even though he went through the diversion program, it was enough to prevent him from joining the Army.

Not sure how OR looks at those laws, though, it is probably different than the Fed gov...

1stklass · Mar 17, 2013

Not to sidetrack, but what if it is a "state felony" but not a "federal felony"? does the feds log it as a federal felony if it gets expunged from state records? anyone know?

Scvette · Mar 17, 2013

I'm not a lawyer,but I think she can answer no to both,check with a good attorney. As far as being charged with a state felony,I know that if it is set aside or expunged you can answer no,I have a Wa cpl and a Utah CWP. Mine was set aside.

eganx · Mar 18, 2013

From my personal experience, if the conviction has been expunged, you may answer no to said question on any form pertaining to that conviction.

PrDubi · Mar 18, 2013

this is just from my OWN LAWYER and my own experience from a Marion County Judge but you can answer that and say NO to those questions. They cannot bring it up because it is not in any system. YOU HAVE TO MENTION IT.

I recommend just saying NO, but have a letter to make sure that it is stated that it has been EXPUNGED and EXPUNGED ONLY.

Godzilla · Mar 18, 2013

Not sure about the CHL, but the yellow sheet for purchase of a firearm has this in the instructions.

EXCEPTION to 11.c. and 11.i.
:
A person who has been convicted of a
felony, or any other crime, for which the judge could have imprisoned the
person for more than one year, or who has been convicted of a misdemeanor
crime of domestic violence, is not prohibited from purchasing, receiving, or
possessing a firearm if: (1) under the law of ATF Form 4473 (5300.9) Part I
Revised April 2012
the jurisdiction where the conviction
occurred, the person has been pardoned, the
conviction has been expunged or set aside, or
the person has had their civil rights
(the right to vote, sit on a jury, and hold public office)
taken away and later
restored AND (2) the person is not prohibited by the law of the jurisdiction where
the conviction occurred from receiving or possessing firearms. Persons
subject to
this exception should answer
"no"
to 11.c. or 11.i., as applicable

Hawaiian · Mar 18, 2013

If this is her ONLY incident with no other convictions, was a misdermeanor and is over 4 years ago, she is not barred from securing an Oregon CHL. Question one is NO as she was not convicted of the drug charge, just like a DUI where completion of a diversion program results in no conviction for DUI. Question two is Yes as she was in a court ordered diversion program.
I would be totally honest on the form. She will get her CHL. The Sheriff can see the expunged criminal records. They do not dissapear from his view, only the view of others such as an employer running a background check for a job.
OR 166-291 covers the CHL section of the statute. Pull it up and you will see that the diversion program by itself with no other conviction does not prohibit her from securing a CHL in Oregon.

duane black · Mar 18, 2013

tkdguy said:
I need some guidance from an attorney familiar with the chl application and prior problematic histories. I just learned this, but several years ago my then 29 year old daughter was caught as a federal employee offerinbg a "joint" to a federal employee when she worked at Federal Park several summers ago. She was arrested, spent two days in jail, fined $1000.00 and lost her fed job for the summer. She was offered a diversion program for 1 year that she successfully completed and the fed judge expunged her record. She plead guilty to the charge, but was never convicted in lieu of her successful probation. Yea. I just learned of this when she was almost finished with her chl application.

That chl application askes two questions related to conviction of an offense involving controlled substances (yes or no) and the second question, related to if you have been subject to a court-ordered diversion program for controlled substances. (yes or no).

So, I need an attorney to advise on how to properly respond to the questions. Her records are expunged from public review I think, but the fed records still exists.

My personal thought would be to answer yes on both, and attach the fed paper work which expunges the record and notes her completion of the year long diversion.

Do you have any attorneys that are very familiar with these problems that you can recommend? thanks.

I am not a lawyer, do not do what I say in my post below. I fix computers for a living and know nothing about law what so ever. I'm just saying what I WOULD DO, not what YOU should do.

Oregon gives folks like her ONE chance in this regard. Your logic is sound, answering yes, but I would answer no for the conviction question as that is the whole point of Oregons diversion program, to avoid a conviction.

They can't deny her as you can see in the code below. She may have to answer a question or two or even appeal but she WILL get her CHL based on the post you laid out.

I would leave the questions blank personally and when asked why would give a explanation.

2 issues at play here. ( see bold below )

1. She was not convicted of ORS 475.864(3) , presumably per your post.

2. Her record was expunged which negates this whole question.

I would still answer truthfully on the form, OR not answer though. You do NOT want to lie on these forms, ever.

166.291 Issuance of concealed handgun license; application; fees; liability. (1) The sheriff of a county, upon a person's application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person:
(a)(A) Is a citizen of the United States; or
(B) Is a legal resident alien who can document continuous residency in the county for at least six months and has declared in writing to the United States Citizenship and Immigration Services the intent to acquire citizenship status and can present proof of the written declaration to the sheriff at the time of application for the license;
(b) Is at least 21 years of age;
(c) Is a resident of the county;
(d) Has no outstanding warrants for arrest;
(e) Is not free on any form of pretrial release;
(f) Demonstrates competence with a handgun by any one of the following:
(A) Completion of any hunter education or hunter safety course approved by the State Department of Fish and Wildlife or a similar agency of another state if handgun safety was a component of the course;
(B) Completion of any National Rifle Association firearms safety or training course if handgun safety was a component of the course;
(C) Completion of any firearms safety or training course or class available to the general public offered by law enforcement, community college, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or a law enforcement agency if handgun safety was a component of the course;
(D) Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, reserve law enforcement officers or any other law enforcement officers if handgun safety was a component of the course;
(E) Presents evidence of equivalent experience with a handgun through participation in organized shooting competition or military service;
(F) Is licensed or has been licensed to carry a firearm in this state, unless the license has been revoked; or
(G) Completion of any firearms training or safety course or class conducted by a firearms instructor certified by a law enforcement agency or the National Rifle Association if handgun safety was a component of the course;
(g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony;
(h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application;
(i) Has not been committed to the Oregon Health Authority under ORS 426.130;
(j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness;
(k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470;
(L) Has not been convicted of an offense involving controlled substances or participated in a court-supervised drug diversion program, except this disability does not operate to exclude a person if:
(A) The person has been convicted only once of violating ORS 475.864 (3) and has not completed a court-supervised drug diversion program under ORS 135.907; or
(B) The person has completed a court-supervised drug diversion program under ORS 135.907 and has not been convicted of violating ORS 475.864 (3);
(m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738;
(n) Has not received a dishonorable discharge from the Armed Forces of the United States; and
(o) Is not required to register as a sex offender in any state.
(2) A person who has been granted relief under ORS 166.274 or 166.293 or section 5, chapter 826, Oregon Laws 2009, or 18 U.S.C. 925(c) or has had the person's record expunged under the laws of this state or equivalent laws of other jurisdictions is not subject to the disabilities in subsection (1)(g) to (L) of this section.
(3) Before the sheriff may issue a license:
(a) The application must state the applicant's legal name, current address and telephone number, date and place of birth, hair and eye color and height and weight. The application must also list the applicant's residence address or addresses for the previous three years. The application must contain a statement by the applicant that the applicant meets the requirements of subsection (1) of this section. The application may include the Social Security number of the applicant if the applicant voluntarily provides this number. The application must be signed by the applicant.
(b) The applicant must submit to fingerprinting and photographing by the sheriff. The sheriff shall fingerprint and photograph the applicant and shall conduct any investigation necessary to corroborate the requirements listed under subsection (1) of this section. If a nationwide criminal records check is necessary, the sheriff shall request the Department of State Police to conduct the check, including fingerprint identification, through the Federal Bureau of Investigation. The Federal Bureau of Investigation shall return the fingerprint cards used to conduct the criminal records check and may not keep any record of the fingerprints. The Department of State Police shall report the results of the fingerprint-based criminal records check to the sheriff. The Department of State Police shall also furnish the sheriff with any information about the applicant that the Department of State Police may have in its possession including, but not limited to, manual or computerized criminal offender information.
(4) Application forms for concealed handgun licenses shall be supplied by the sheriff upon request. The forms shall be uniform throughout this state in substantially the following form:

tkdguy · Mar 18, 2013

CLARIFICATION: SHE WAS CHARGED WITH A 21 USC 844 CLASS A MISDEMEANOR in july of 2009 and these were expunged in October of 2010. The charge was not a felony. Similarily she ws charged and had the record expunged for a 36 cfr 2.32(a) (1) Interfere with government agency [likely substance related to federal co-worder or her self].

CORRECTION: IN 2009 SHE WAS LESS THAN 21 YEARS OLD--AND THE COURT GRANTED HER THE EXPUNGED RECORD BECAUSE SHE COMPLIED WITH THE COURT ORDER OF DIVERSION AND SHE WAS LESS THAN 21 AT THE TIME OF THE OFFENSE.

ANY OTHERS IDEAS????

duane black · Mar 18, 2013

tkdguy said:
CLARIFICATION: SHE WAS CHARGED WITH A 21 USC 844 CLASS A MISDEMEANOR in july of 2009 and these were expunged in October of 2010. The charge was not a felony. Similarily she ws charged and had the record expunged for a 36 cfr 2.32(a) (1) Interfere with government agency [likely substance related to federal co-worder or her self].

How the hell was she charged with a FEDERAL MJ crime ? I am still unclear if she was actually convicted of the MJ charge ?

I digress.

It looks to me like Oregon specifically talks about state MJ law and diversion, how does this apply to a federal charge and/or conviction, I do not know. Oregon is very specific in this section. It does not mention federal law. This is where a attorney should come in. I am still inclined to believe this is a non-issue, just don't lie on the forms. The expungement is huge. The questions are on the form because of the law below.

(A) The person has been convicted only once of violating ORS 475.864 (3) and has not completed a court-supervised drug diversion program under ORS 135.907; or
(B) The person has completed a court-supervised drug diversion program under ORS 135.907 and has not been convicted of violating ORS 475.864 (3);

(2) A person who has been granted relief under ORS 166.274 or 166.293 or section 5, chapter 826, Oregon Laws 2009, or 18 U.S.C. 925(c) or has had the person's record expunged under the laws of this state or equivalent laws of other jurisdictions is not subject to the disabilities in subsection (1)(g) to (L) of this section.

I think talking to a good attorney may be wise. I came across these names and keep them handy. I can NOT vouch for any of them.

Firearm Friendly Attorneys.

Jason G. Short
503-747-7198 / [email protected]
Portland Criminal Defense Attorneys | Beaverton DUI Lawyers | Hillsboro Personal Injury | Salem, OR

Laurence Erickson Walker
503-224-5468 / [email protected]
Gordon & Rees LLP :: Home Page

Debbe von Blumenstein
503-831-1550 / [email protected]
debbevonblumenstein.net: The Leading Debbie VON Lumen Stein Site on the Net

James E. Leuenberger
503-542-7433 / [email protected]
Fights 4 Rights - James Leuenberger - Portland Oregon