The Volokh Conspiracy

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N.J. Appellate Court Overturns Denial of Handgun Purchase Permit

The applicant had a 5-year-old drunk driving arrest (which led to a conviction on a reduced charge) and a 12-year-old conviction of drinking alcohol by a passenger.


From In the Matter of … Andriy Yaremiy, decided yesterday by Judges Richard Hoffman, Mary Gibbons Whipple, and Richard Geiger:

Appellant applied for a FPIC and Handgun Purchase Permit. The application was denied by the Chief of the Borough of Wood-Ridge Police Department. In his letter to appellant notifying him of the denial, the Chief stated that investigation revealed appellant had been arrested for driving while intoxicated (DWI) in 2015…. [At a later court hearing, t]he Chief testified that in 2015, appellant was arrested in New York on a "2C violation," and in 2008, appellant received a summons … for consumption of alcohol by a passenger while the vehicle is being operated, in violation of N.J.S.A. 39:4-51a(a). Appellant was fined $256 and costs for that violation; his license was not suspended, and he was not sentenced to jail time.

On the 2015 offense, defendant pled guilty to a reduced charge of driving while ability impaired (DWAI), in violation of New York Vehicle and Traffic Law (VTL) § 1192.1, and was sentenced to a one-year conditional discharge, no jail time, a ninety-day suspension of driving privileges, and a $500 fine.

The Chief testified that he denied the application because of appellant's history of alcohol, "falsification on the application," and "it not being in the best interest" of the public safety, health, and welfare of our citizens. The Chief related that he had never granted a firearm purchase application to someone with a DWI conviction.

Detective David Marchitelli testified that he believed appellant's prior involvement with alcohol and motor vehicles showed a lack of judgment and disregard for the law. Marchitelli was also concerned that appellant was not truthful when questioned about the 2015 DWI arrest. [The court later concluded that Marchitelli was in error about this, and the appellant's statements were accurate. -EV] He concluded the application should be denied based on a risk to public health, safety, and welfare.

The State presented no evidence that appellant was a habitual drunkard, suffered from mental health conditions, had been confined for a mental disorder to a hospital or psychiatric treatment facility, or had any history of committing domestic violence. The Chief confirmed that no domestic violence complaints or drunk and disorderly complaints had ever been filed against appellant. He also acknowledged that other than the DWI arrest, he did not know appellant to be a habitual drunkard and was not aware if appellant had any psychological problems….

Regarding the 2008 consuming an alcoholic beverage in a vehicle charge, appellant testified he pled guilty without the advice of counsel. He claimed he was a passenger in a van driven by a friend and was unaware there was an open container in the vehicle….

The [trial] court found the State met its burden of showing "[b]y a preponderance of the evidence, [that] the issuance of [a] FPIC or Handgun Purchase Permit to appellant would pose a threat to the public health, safety, and welfare." The court concluded appellant "lacks insight into the gravity of his past involvement with alcohol within motor vehicles" and "appeared to have not gained any benefit from the program he was required to attend after his conviction." While recognizing that "the right to bear arms is guaranteed in the [United States] Constitution," the court found good cause to deny appellant's application….

Balancing … competing interests—the right to bear arms and reasonable limitations on gun ownership to protect the public—N.J.S.A. 2C:58-3(c) provides:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

The statute was enacted to prevent "statutorily 'unfit' persons from possessing firearms." Relevant to this case, the disabilities preventing firearm ownership include "any person who has been convicted of any crime or a disorderly persons offense involving an act of domestic violence[,]" N.J.S.A. 2C:58-3(c)(1); "any drug-dependent person" and "any person who is confined for a mental disorder to a hospital [or] mental institution" or "any person who is presently an habitual drunkard[,]" N.J.S.A. 2C:58-3(c)(2); "any person who knowingly falsifies any information on an application form for a handgun purchase permit or firearms purchaser identification card[,]" N.J.S.A. 2C:58(c)(3); and "any person where the issuance [of the permit] would not be in the interest of the public health, safety or welfare[,]" N.J.S.A. 2C:58(c)(5). Any one of these disabilities is legally sufficient to deny the issuance of a permit to own or possess a firearm….

In State v. Freysinger (N.J. Super. 1998), a defendant had to forfeit his firearms and was found to be a "habitual drunkard" because he had two DWI convictions, two convictions for refusing to submit to chemical tests, and admitted that he hit a pedestrian (whom he claimed did not know was his girlfriend) with his car but did not stop and drove straight home and went to bed. In contrast, appellant had one DWI conviction in 2015, and a consumption of alcohol in a motor vehicle conviction in 2008, twelve years before he applied for the FPIC and handgun purchase permit….

The State was required to prove by a preponderance of the evidence that granting a FPIC or handgun purchase permit to appellant "would not be in the interest of the public health, safety or welfare[.]"  Our careful review of the record convinces us that the State did not satisfy that burden.

The consumption of alcohol in a motor vehicle incident as a passenger occurred twelve years before the application was filed. Alcohol consumption by a passenger does not pose a risk to public health, safety, or welfare. The DWI occurred five years before the application. There have been no repeat offenses. Neither conviction was related to weapons or domestic violence. Both were motor vehicle offenses. Appellant is thirty-eight years old. He has never been convicted of a crime or disorderly persons offense, let alone one related to domestic violence. Nor is there any evidence that defendant currently abuses alcohol….

Reversed and remanded for the Law Division to enter an order granting a FPIC and handgun purchase permit to appellant….