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View Full Version : SB 755 if you find yourself in this situation....(DUI example)


Tank.45
09-04-2013, 4:54 PM
SB755 Has been Vetoed by Gov. Brown
http://gov.ca.gov/docs/SB_755_2013_Veto_Message.pdf

*Nothing below is legal advice nor am I a lawyer.

Judging by the bill history and some particulars about the way the bill is worded, SB 755 will more than likely become law. This bill amends pc 29805 too include additional misdemeanors and combinations of misdemeanors making offenders prohibited persons for 10 years following the last conviction. There are also a few other components to this bill which have intrinsically flawed logic and demonstrate a lack of reading skills by the authors; these have been discussed in other threads on calguns. The purpose of this thread, and the scenario below, is to propose options should a calgunner find themselves at the wrong end of this bill.

The scenario:(meant to be demonstrative)

Calgunner receives a SINGLE standard alcohol DUI arrest and is charged with the standard alcohol DUI violations of 23152(a) and 23152(b). 23152(a) is driving under the influence, 23152(b) is driving under the influence with blood alcohol content above 0.08%. Generally both subsections are charged unless a chemical test was refused. Both sections carry with them an individual misdemeanor charge and probable conviction. Calgunner now pleads out or goes to court and is convicted of 23152(a) and 23152(b) which gives two misdeamnor convictions under 23152. Fast forward a few years and out of the blue SB 755 is signed into law. Calgunner is now a prohibited person because...

(b) Except as provided in Section 29855, any person who has been convicted of misdemeanor violations of two or more of any of the following offenses, or two or more misdemeanor violations of any one of the following offenses, within a three-year period and who, within 10 years of the second conviction, owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of an infraction, punishable by a fine not exceeding two hundred fifty dollars ($250).
(1) Possession of a controlled substance with intent to sell in violation of Section 11357.5 of the Health and Safety Code.
(2) Possession of a controlled substance with intent to sell in violation of paragraph (1) of subdivision (b) of Section 11375 of the Health and Safety Code.
(3) Possession of a controlled substance with intent to sell in violation of Section 11379.2 of the Health and Safety Code.
(4) Section 11550 of the Health and Safety Code.
(5) Section 191.5.
(6) Subdivision (f) of Section 647.
(7) Section 23152 of the Vehicle Code.

.... now that calgunner is a prohibited person, but lawfully owned/s firearms so he/she is now committing a crime. What to do?

Potential Options:

1) Prior to SB755 being passed, cal gunner can invoke pc 1203.4 (incorrectly termed expungment).

Pros: If your 1203.4 petition goes through you will not have had any convictions of 23152 by the time the Sb755 becomes effective.

Cons: 1203.4 has a clause that specifically states firearms prohibition is not changed by invoking 1203.4 = Extremely subjective/ Gray area

2) Become/ already be a LEO and invoke 29855

3) After SB755 passes, invoke 29860 to eliminate your prohibition.

Pros: effectively makes passage of SB755 a non-issue for cal gunner

Cons: petition can only be made once And if your good cause statement is you are a gun owner you have just violated the newly amended 29805 (we all know how effective self defense is as a good cause statement in california.)

4) combination of options 2 and 3

5) Im not sold on this idea but a trust may be enough to maintain custodianship of the firearms (Im probably wrong about this)


Additional Notes:

> If calgunner is not diligent and aware of this amendment, section 2 (d) states...

"(d) The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this section."

... So, expect a knock on your door from these guys http://www.npr.org/2013/08/20/213546439/one-by-one-california-agents-track-down-illegally-owned-guns

> This is what the spokesperson for the OAG of California told bloomberg news.
“The prohibited person can’t have access to a firearm,” regardless of who the registered owner is, said Michelle Gregory, a spokeswoman for the attorney general’s office." http://www.bloomberg.com/news/2013-03-12/california-seizes-guns-as-owners-lose-right-to-bear-arms.html So now if you think you can transfer them to someone in your house and all is dandy and merry you are wrong

> As alluded too above, there are some other very obvious problems with this law which are discussed here:
http://www.calguns.net/calgunforum/showthread.php?t=710172&highlight=sb+755


Conclusion:

Cluster F*** for anyone on the other end of this bill...


Applicable law/legislation for this discussion:

SB 755 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB755

1203.4 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=01001-02000&file=1191-1210.5

29855 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=29001-30000&file=29850-29865

29860http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=29001-30000&file=29850-29865

23152 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=23001-24000&file=23152-23229.1

hardlyworking
09-05-2013, 4:55 AM
DUI's are serious business, and I'm sure this law will be pitched "drug dealers shouldn't have guns!" as if their current line of work is above board...

But this is pretty scary. Not worried about myself, I'm worried about my kids, kids (self included, once) do stupid **** from time to time

Grumpy-old-man
09-05-2013, 6:40 AM
Here are a couple more possible options. I'm not a lawyer so what do I know, but maybe some legal eagle out there could comment.

1. Emigrate to another state. Don't return to Kali until the 10 year prohibition is up, at least not in any way with access to a firearm. This one should work, since the disqualifiers are purely in the Kali system, not federal NICS.

2. Get a storage locker in another state in which the person with the California only prohibition under SB755 is not prohibited. Store all guns, ammo, and accessories there for the duration. Downside is a real risk of theft or damage of your stuff during the possibly 10 year long interval. Also you will have no means of self defense at home (if anyone else in your family has guns, expect APP to at least try for them since there is now a California prohibited person in the household - any guns held by other family members had darn well better be secured in a safe to which the prohibited calgunner does not have access and even then could be lost if the APP team is aggressive enough). And you'd darn well better be sure that you've not missed so much as a single cartridge, since if your place is searched and you're "in possession" you're burned.
On (2), I'm not sure if you would need a gun trust or even if it would "work". In theory they could claim you still have "access" to the guns even though they're out of state and charge you even if it is out of California's jurisdiction. How will they know? When the APP team checks out your place and asks where the guns are. If you sold them there has to be a record, if you stored them elsewhere in the state you're burned, so the only way out that I can see is to say you moved 'em out of state. Not sure what they'd do then, but its a situation in which your guns are not in their jurisdiction but you are.

Personally I think I'd emigrate and not come back if it was possible. Please no flames, I understand some can't or won't consider that option. But there's no state or country in the world that is such a great place to live in that I will willingly give up my rights for the duration. Only family responsibilities that outweigh gun ownership could cause that and it would not be a willing or happy choice.

Its a mess, and I fully expect to see a steady flow of guns confiscated from non-criminals during the next few years as APP expands. And if they expand the prohibited persons list retroactively once they can do it again, both by adding "crimes" and by extending the duration of the prohibition. Don't think that the gun-grabbers are ignorant of this, its my opinion that this was the whole plan from back when the Brady Bill was being proposed at the federal level - create a black list of people who can't own guns then expand it until pretty much no one can own guns. Just like what they're trying to do to the "assault weapon" list - once you have a list you can expand what's on it. Like the Ruger Mini 14, which was hitherto not an "assault weapon", thus "safe", but not any more.

Good luck guys.

Best,
Grumpy

Frozenguy
09-07-2013, 8:23 AM
It's about time California does something right.
California is a joke when it comes to punishing people with DUI.

For first time offense it should be mandatory jail time, felony all around, mandatory breathalyser on the car, and community service.

Someone who takes a car while drunk probably doesn't have much respect for firearms, or life for that matter.

monk
09-07-2013, 8:40 AM
Option one should be "don't DUI."

Stupid games and all that.

tnlrat37
09-07-2013, 8:41 AM
Jails are overcrowded as it is, and their letting out violent dirtbags already. Yes i agree DUI is stupid. However if they ban people with misdemeanors how long til they ban for speeding tickets or having bad credit or whatever til were all banned, its that slippery slope that they can use under the "public safety" banner. Don't let them fool you

omnitravis
09-07-2013, 8:56 AM
Jails are overcrowded as it is, and their letting out violent dirtbags already. Yes i agree DUI is stupid. However if they ban people with misdemeanors how long til they ban for speeding tickets or having bad credit or whatever til were all banned, its that slippery slope that they can use under the "public safety" banner. Don't let them fool you

People with bad credit are terrorists! They cannot be allowed weapons.

2020?

ddestruel
09-07-2013, 2:28 PM
It's about time California does something right.
California is a joke when it comes to punishing people with DUI.

For first time offense it should be mandatory jail time, felony all around, mandatory breathalyser on the car, and community service.

Someone who takes a car while drunk probably doesn't have much respect for firearms, or life for that matter.

What else would you like to make a felony with the broad stroke of the brush….. there needs to be judgement also in handing out punishment ... we cant legislate common sense, when you do we end up with the situation we are experiencing now where the bar keeps moving lower and netting more and more non-criminals and failing to achieve the objective.

my how times have changed….. we should do the same with cell phones, texting and driving……. lately texting and driving or cell phone use combined has been rivaling DUI wrecks…. what about all the illegal aliens who kill friends of yours then walk out of court. ……

you do realize that one glass of wine at dinner can fetch anyone that said DUI. you dont have to be above the ever moving line of .08.

BTW CA’s DUI laws are far from lenient. they set a fairly high mark in CA compared to the nation. lets talk about unlicensed drivers, uninsured drivers, illegal drivers and maybe about better drivers licensing training. its not just the alcohol these days, its crummy drivers, with no training, lack luster enforcement and DUI check points are making it apparent that DUI’s arent as much of a problem as other things these days. they are still an issue but the wide net of felony you are suggesting throwing is a very slippery slope that you might step back and consider the unintended consequences of including the abuses including the 52 year old woman in petaluma a few years back who got a DUI for having a BAC of .019 when she planted her truck in ditch after an illegal alien passed her on the double yellow and side swiped her….. the catch with that was she had cough medacine in her system. guess that dangerous felon should spend time in prison

the world doesnt exist in absolutes as you propose, if that is allowed to exist we slip further into the ever growing police state of existance with a litany of laws making everything illegal and a felony. im sorry, i have lost family to Drunk drivers, i’ve pulled close friends dead out of a vehicle but i refuse to support a world of absolute punishment and laws like you are suggesting. i see that perspective as flawed.

VAReact
09-08-2013, 4:17 AM
So let me get this straight (if the analysis is correct of the bill as currently amended)...

An individual is arrested and convicted of Misdemeanor DUI (2 misdemeanors, as mentioned above). After a one month "hard" suspension of the driving PRIVELEGE, one can be driving again (with limitations and alcohol awareness classes) for 5 months, and back to full driving PRIVELEGE at six months...yet...they will lose a CONSTITUTIONALLY ENUMERATED RIGHT unrelated to the criminal activity of conviction for 10 YEARS...sounds a little back-asswards to me.

Tank.45
09-09-2013, 10:11 AM
So let me get this straight (if the analysis is correct of the bill as currently amended)...

An individual is arrested and convicted of Misdemeanor DUI (2 misdemeanors, as mentioned above). After a one month "hard" suspension of the driving PRIVELEGE, one can be driving again (with limitations and alcohol awareness classes) for 5 months, and back to full driving PRIVELEGE at six months...yet...they will lose a CONSTITUTIONALLY ENUMERATED RIGHT unrelated to the criminal activity of conviction for 10 YEARS...sounds a little back-asswards to me.

Yes. And under that section, Even some firearms related misdemeanors won't buy you this ban

desertjosh
09-09-2013, 12:16 PM
The really bad part about this bill is that it is retroactive.

CAL.BAR
09-09-2013, 12:33 PM
OP, 23152(a) and (b) are usually charged, that's true, but they don't count as two separate convictions for the purposes of the code section you are referring to. PC 654 usually merges duplicative charges like that. Now I don't advocate firearms restrictions on second DUI's, but it will not result from ONE single conviction with two counts.

TeddyBallgame
09-09-2013, 12:57 PM
It's about time California does something right.
California is a joke when it comes to punishing people with DUI.

For first time offense it should be mandatory jail time, felony all around, mandatory breathalyser on the car, and community service.

Someone who takes a car while drunk probably doesn't have much respect for firearms, or life for that matter.

while I do agree with what you are saying, my concern is how they keep lowering the legal limit...it's now at .08 down from .10

what happens when they lower it even further and further, to the point .03 is considered impairment...it's an arbitrary number, people's metabolisms work differently, so is tolerance levels...that number doesn't factor in any of that, which is why I have concerns with it

chris
09-09-2013, 2:06 PM
The really bad part about this bill is that it is retroactive.

great a Laughtenberg Amendment in this state. typical. lets punish you for something committed 35 years ago and you have done nothing wrong since but hey we're going to take your guns away like Laughtenberg's law did.

Tank.45
09-09-2013, 2:17 PM
OP, 23152(a) and (b) are usually charged, that's true, but they don't count as two separate convictions for the purposes of the code section you are referring to.

I have a single case print in front of me which shows two separate misdemeanor charges and convictions for 23152(a) and 23152(b) for the same arrest (with no prior convictions). = 10 year prohibition when SB755 is passed. You may be correct for some cases, but getting two misdemeanor convictions from a single case does happen.

Garand1911
09-10-2013, 2:25 AM
I know a few cops with DUIs that are going to lose their job if this thing passes.

Slim///
09-10-2013, 2:50 AM
Tagged

tnlrat37
09-10-2013, 4:50 AM
Not to mention any class A drivers like myself DUI is anything over .04 even In your personal vehicle, you can get a .04 by driving by a liquor store. Or god forbid you take some cough medicine. If I drink I don't drive for 24 hrs just to be sure, I know alot of people LEOs included that have gotten them on their way to work the next morning. And yes there will be quite a few LEOs with problems at work if this passes

Tank.45
09-10-2013, 7:30 AM
I know a few cops with DUIs that are going to lose their job if this thing passes.

LEOs will be exempt from this amendment as a result of PC 29855

GM4spd
09-12-2013, 5:04 AM
Option one should be "don't DUI."

.


This! Plus I love the term "standard" DUI:rolleyes: Pete

huntercf
09-16-2013, 8:46 PM
It's about time California does something right.
California is a joke when it comes to punishing people with DUI.

For first time offense it should be mandatory jail time, felony all around, mandatory breathalyser on the car, and community service.

Someone who takes a car while drunk probably doesn't have much respect for firearms, or life for that matter.

You obviously don't know about CA DUI laws. First of all someone can get a DUI for having a BAC of just .01 not .08, anything .08 or higher is an automatic DUI charge, a BAC of .01 to .079 is at the discretion of the arresting officer.

Here's one for you (and yes this did happen but not to me): Guy is working on car in driveway of his home, car is up on blocks and is running, he is having a few beers while working on said car, cop rolls by and notices loud music, questions guy and notices alcohol on breath, cop gives him a breathalyzer and he blows a .08, guy goes to jail for DUI. This really happened in CA.

Another one: Guy is convicted of DUI for having a few beers and driving home he blew a .08, didn't go to trial was cheaper to plead, wasn't swerving, pulled over for broken tail light. 4 months later is pulled over for going 5 miles over speed limit because he is late for work, cop notices recent DUI conviction and gives him a breathalyzer test and he blows a .01 because he just gargled with scope 5 minutes before, BOOM 2nd DUI.

So let me get this straight (if the analysis is correct of the bill as currently amended)...

An individual is arrested and convicted of Misdemeanor DUI (2 misdemeanors, as mentioned above). After a one month "hard" suspension of the driving PRIVELEGE, one can be driving again (with limitations and alcohol awareness classes) for 5 months, and back to full driving PRIVELEGE at six months...yet...they will lose a CONSTITUTIONALLY ENUMERATED RIGHT unrelated to the criminal activity of conviction for 10 YEARS...sounds a little back-asswards to me.

Amen, what is next? Anyone caught talking on cell phone is banned for 10 years because it is more dangerous than someone with a BAC of .08?

DrowningMonkey
09-17-2013, 1:52 PM
Where would be a good place to find a lawyer to look into whether I would violate sb 755. I had a couple indiscretions eight and ten years ago at the end of highschool and right after, and while im sure the second one, a dui was expunged I heard that doesn't matter, and the first one was an minor in possession that was supposed to be sealed i believe, but im not sure due to the dui being only 2 years after instead of the 3 my summary probation was. The thing that really sucks is that shooting is one of the things i picked up to do after i laid off the drinking, and now almost a decade later i may not get to squeak by, and would have to get rid of guns that would have to be registered so even if i gave them to my father, i would never be able to own them again. Plus there is the whole having to find a new place because my roomate also has guns.

stix213
09-17-2013, 2:47 PM
LEOs will be exempt from this amendment as a result of PC 29855

So civilian who keeps a gun in the safe is a big no no with 2 DUI's, but a cop who drives around all day enforcing traffic laws himself (including DUI law) with a gun on his hip all the time is so important to the state that it should be exempted with 2 DUI's....


:facepalm:

Who comes up with this crap?

Cali1179
09-17-2013, 3:55 PM
Unfortunately I am going to be part of this issue. I was living in a small town and going through a rough spot in my life around 6 years ago. I made the mistake of having a few beers and driving home and was pulled over in my driveway by a local police officer. Two years later I had a couple glasses of wine on Christmas Eve and again made the mistake if driving home and was pulled over again in my driveway. Let me restate, this is all my own fault and mine alone. When you get any DUI they put you on 0 tolerance probation for a 3 year period. So even though my BAC was only .05 on my second one, they still treated it as another DUI. I have never been a big drinker, have absolutely no other issues, arrests, and only a couple speeding tickets for my entire life. Fast forward to today, 6 years later. I am happily married with 2 amazing kids. I do not drink at ALL anymore. I absolutely learned my lesson and will ever put myself In that situation ever again.

Unfortunately the state has decided for me that my lesson is ongoing. I am a HUGE hunter and fisherman and get out every time I possibly can. Other than my family, hunting is was gives me the most enjoyment out of life. Now if this bill is passed I will have to put that passion on hold for 4 years until they have deemed my lesson learned. It just doesn't seem fair to me. Why punish people that done everything asked of them already? The fact that this bill is possibly going to be retro just saddens me in the worst way. If I could leave I would. My amazing wife still has faith in this state and family ties will most likely keep us here. So now I need start saving hard earned money to pay somebody to move a gun safe. Just doesn't seem fair.

desertjosh
09-18-2013, 6:33 AM
You guys who think 755 might affect them, look at the 755 thread in the california 2a section. There might be relief for you if you incurred the misdemeanors before the law is implemented.

InfringedInSoCal
09-18-2013, 6:58 AM
Texas / Arizona / Idaho / Montana - elsewhere.

Screw this dump.

I can rent a beachhouse in Newport Beach for two weeks a year and enjoy the beach - which I'm too busy working to enjoy here now anyways - paying all the excess taxes / fees / and inflated mortgage/home costs anyways.




Unfortunately I am going to be part of this issue. I was living in a small town and going through a rough spot in my life around 6 years ago. I made the mistake of having a few beers and driving home and was pulled over in my driveway by a local police officer. Two years later I had a couple glasses of wine on Christmas Eve and again made the mistake if driving home and was pulled over again in my driveway. Let me restate, this is all my own fault and mine alone. When you get any DUI they put you on 0 tolerance probation for a 3 year period. So even though my BAC was only .05 on my second one, they still treated it as another DUI. I have never been a big drinker, have absolutely no other issues, arrests, and only a couple speeding tickets for my entire life. Fast forward to today, 6 years later. I am happily married with 2 amazing kids. I do not drink at ALL anymore. I absolutely learned my lesson and will ever put myself In that situation ever again.

Unfortunately the state has decided for me that my lesson is ongoing. I am a HUGE hunter and fisherman and get out every time I possibly can. Other than my family, hunting is was gives me the most enjoyment out of life. Now if this bill is passed I will have to put that passion on hold for 4 years until they have deemed my lesson learned. It just doesn't seem fair to me. Why punish people that done everything asked of them already? The fact that this bill is possibly going to be retro just saddens me in the worst way. If I could leave I would. My amazing wife still has faith in this state and family ties will most likely keep us here. So now I need start saving hard earned money to pay somebody to move a gun safe. Just doesn't seem fair.

Tank.45
09-19-2013, 8:08 PM
You guys who think 755 might affect them, look at the 755 thread in the california 2a section. There might be relief for you if you incurred the misdemeanors before the law is implemented.

I took a look on in the cal 2a section and couldn't find anything promising. Can you post a link?

desertjosh
09-20-2013, 5:53 AM
I took a look on in the cal 2a section and couldn't find anything promising. Can you post a link?

http://www.calguns.net/calgunforum/showthread.php?t=821491&page=2

Here you go. Post #59 is where it starts to be discussed. Im curious to hear other peoples opinions on it.

Tank.45
09-20-2013, 12:01 PM
http://www.calguns.net/calgunforum/showthread.php?t=821491&page=2

Here you go. Post #59 is where it starts to be discussed. Im curious to hear other peoples opinions on it.

Option #3 in the first post on this thread discusses the pros and cons of this relief. It is not mandatory for the judge to accept the petition to eliminate or reduce the prohibition. In other words, you would have ONE shot at this relief and it would be completely up to the Judge.

desertjosh
09-20-2013, 12:09 PM
Option #3 in the first post on this thread discusses the pros and cons of this relief. It is not mandatory for the judge to accept the petition to eliminate or reduce the prohibition. In other words, you would have ONE shot at this relief and it would be completely up to the Judge.

Sorry, I didnt see you went over that already. I guess one shot is better then no shot...
It really should be illegal for this bill to be retro active.

Diamondback68
09-20-2013, 1:46 PM
while I do agree with what you are saying, my concern is how they keep lowering the legal limit...it's now at .08 down from .10


If I were you in this situation I would give up drinking and get a pot card and avoid DUI altogether!

advocatusdiaboli
09-20-2013, 3:10 PM
The really bad part about this bill is that it is retroactive.

I think that part will nullify it in the courts eventually. You cannot make a crime retroactive—it's blatantly unconstitutional.

SpunkyJivl
09-20-2013, 3:33 PM
People with bad credit are terrorists! They cannot be allowed weapons.

2020?

People that drive vehicles that get less than 30 MPG are terrorists too, consider them prohibited persons as well.

advocatusdiaboli
09-20-2013, 4:38 PM
People that drive vehicles that get less than 30 MPG are terrorists too, consider them prohibited persons as well.

The Leftist Statists won't need to make them prohibitive persons—they'll be in re-education camps for fossil fuel junkies along with people that believe in the Bill of Rights, particularly the second amendment, and people who want to fish and hunt and drink 16oz sodas.

P.S I have yet to figure out how I can tow a camping trailer or a bass boat over the mountains with out a high-torque truck. What do they think we'll use? A hatchback Prius?

Rickrock1
09-20-2013, 8:43 PM
People that drive vehicles that get less than 30 MPG are terrorists too, consider them prohibited persons as well.


13.5 MPG it's our free country and we pay for it.

desertjosh
09-20-2013, 10:30 PM
I think that part will nullify it in the courts eventually. You cannot make a crime retroactive—it's blatantly unconstitutional.

I think thats how it should be, but i think the laughtenburg(sp?) case changed that. I could be wrong though, im no lawyer.

nicki
09-21-2013, 1:45 AM
LEOs will be exempt from this amendment as a result of PC 29855


Some of you may remember the "Silvera case", you know, Gary Gorski's case against AB23 a few years back.

While the 9th hammered Gorski, they did agree with him on the issue of "equal protection" which resulted in police getting no special rights with regards to registering "private assault weapons".

The courts have not sided with police on "domestic violence", I don't see them siding with Cops on DUI's either.

I don't support this bill, but in all honesty, it will be a hard one to argue against because to do so means I have to take the position that people who drive cars above a .08 alcohol level should be allowed to own guns.

Retroactively applying a law is bs, but I guess ex post facto laws don't apply no more.

This bill was badly drafted and many people will get burnt by it.

I don't have an issue with holding people who abuse alcohol and endanger others responsible, but this is too much.

Nicki