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sealed or expunged records

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Postby Mr.White » Sun Jun 01, 2008 11:14 am

jabeatty wrote:
Mr.White wrote:so do I answer "YES" that I had a felony..even though I was a minor?

I'm not a lawyer, but it sure sounds like that first exception applies to you:

(4) Are you under indictment for a felony,

No, you're not - right?

or, except for a conviction or guilty plea the records of which a court has ordered sealed or expunged or relative to which a court has granted relief from disability pursuant to section 2923.14 of the Revised Code, have you ever been convicted of or pleaded guilty to a felony,

Well, you've either been convicted or pled guilty to a felony, but that's been expunged, correct? Sounds like this exception applies to you, making the correct answer to this question "No."

The other questions that ask about various "disabling" convictions have similar language inserted. The basic gist of the changes is that if your disability has been removed, or your criminal record has been sealed or expunged, you answer them as if the crime was never committed.


is this the new proposed language? because the application i have does not read like that...the felony questions on my app. is #7 not #4.....
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Postby OhioMike » Sun Jun 01, 2008 11:18 am

You won't see a new application until the governor signs the bill into law
So all the now paperwork will have a lot of changes on it

We should see the now applications 90 days after the Gov. signs the bill into law
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Postby wheeler2823 » Wed Jun 04, 2008 8:52 am

Hello all. I am a member, but I usually just read. However, I too am affected by the new CHL laws, and I have also been through some of the things discussed here. I plead guilty to a possession of marijuana charge 10 years ago while in college. Long story short, I went to court here in Hamilton county last summer and was granted total relief from disability, pursuant to ORC 2923.14, which reinstated all my firearm rights. I will be at the sheriffs office the day this new law goes into effect.

What I want to ask is this. To those of you in situations like me, have you have trouble with NICS? I have supplied them with my court documentation, but they deny me every time I try to purchase a gun. They do not recognize my relief. I will be able to carry a firearm in Ohio in September, but unable to by the gun to carry!
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Postby OhioMike » Wed Jun 04, 2008 9:00 am

I know for a FACT (As this was what I was advised in court)
When you get your records SEALED and you go to buy a firearm
you DO NOT divulge your past history (Answer NO) and do not take
your paperwork with you as you do not need it

I have both sealed records and reliefe, the sealed records came first in my case
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Postby jabeatty » Wed Jun 04, 2008 9:11 am

wheeler2823 wrote:Hello all. I am a member, but I usually just read. However, I too am affected by the new CHL laws, and I have also been through some of the things discussed here. I plead guilty to a possession of marijuana charge 10 years ago while in college. Long story short, I went to court here in Hamilton county last summer and was granted total relief from disability, pursuant to ORC 2923.14, which reinstated all my firearm rights. I will be at the sheriffs office the day this new law goes into effect.

What I want to ask is this. To those of you in situations like me, have you have trouble with NICS? I have supplied them with my court documentation, but they deny me every time I try to purchase a gun. They do not recognize my relief. I will be able to carry a firearm in Ohio in September, but unable to by the gun to carry!

Wheeler, did you plead guilty to a felony or a misdemeanor? State-level restoration of rights won't clear a federal block, and a felony conviction would definitely do it at the federal level.
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Postby OhioMike » Wed Jun 04, 2008 9:14 am

That is not true

Even with a felony conviction you can legally purchase a firearm

As long as you go through the court process of getting your record SEALED
you can legally purchase a firearm. You do NOT have to answer YES on the form
and you WILL pass the NICS check legally
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Postby WBL_2006 » Wed Jun 04, 2008 9:18 am

Citation or reference for this? First I have heard of such an option.

Even with a felony conviction you can legally purchase a firearm
after applying for and going through the NICS check as long
as you have your record SEALED


JAB: From an older post by wheeler (9/28/07) [bold by WBL]

Well I talked to BCI and they said that I should be able to have a CHL, but the sheriff said that no, I cannot have a CHL, because even though I have had my rights restored, I am still a convicted felon.
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Postby OhioMike » Wed Jun 04, 2008 9:28 am

Reference...

I have been there done that!
Why would anyone bother getting their record "Sealed" for

What do you think the big controversy is and the big WIN
for those with Sealed records is about. Prior to the Castle Doctorine
those with a prior Felony that were able to obtain a "Sealed Record"
were able to now legally purchase and own a firearm but could not CARRY
as the Sherrif could OPEN a sealed record and DENY your application but
the FEDS DO ACCEPT the Sealed Record as VALID when purchasing a firearm

With a Sealed Record you DO NOT answer YES on your NICS Application

I refuse to get into arguments with people here as in the past
I just get ganged up on. So accept my post or not... It is what it is
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Postby WBL_2006 » Wed Jun 04, 2008 9:35 am

OhioMike,

Geez...just trying to get some info for personal learning. I'm not too savvy with legalismtry.

It seems to me that a person would still have to answer YES to being convicted (because it's the truth) but the details of conviction would be sealed.

I was not aware that "sealing" equates to Felony Conviction vanishing.

:)

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Postby jabeatty » Wed Jun 04, 2008 9:45 am

OhioMike wrote:I have been there done that!
Why would anyone bother getting their record "Sealed" for

Job reasons, for one... but not for federal firearms disability reasons.

OhioMike wrote:What do you think the big controversy is and the big WIN for those with Sealed records is about. Prior to the Castle Doctorine
those with a prior Felony that were able to obtain a "Sealed Record"
were able to now legally purchase and own a firearm but could not CARRY
as the Sherrif could OPEN a sealed record and DENY your application but
the FEDS DO ACCEPT the Sealed Record as VALID when purchasing a firearm

The "big win" is that those persons (without a federal firearms disability) who had an Ohio disability that kept them from obtaining a License to Carry a Concealed Handgun may now have their records sealed or expunged, and may actually obtain a license. An example of this type of issue is a "youthful indescretion" - a minor drug possession conviction would qualify. It didn't cause federal firearms problems, but it does block someone from obtaining a LCCH.

Nothing that Ohio does will correct a federal disability. Only a Presidential pardon can (currently) remove a federal firearms disability under 925(c).

OhioMike wrote:With a Sealed Record you DO NOT answer YES on your NICS Application

Then you're committing a serious federal crime each time you complete a 4473, and you're doing folks a big disservice by suggesting they do the same.

OhioMike wrote:I refuse to get into arguments with people here as in the past I just get ganged up on. So accept my post or not... It is what it is

If telling you the truth (and citing the appropriate law, as I will do) is "ganging up on you," what sort of interaction can you handle?

Here's the law:

922(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—

(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

In most jurisdictions, possible imprisonment for a term exceeding one year equals "felony conviction."

It's the law. It might be BAD law. It might be law that needs to be changed. It's no doubt an extra-Constitutional restriction.

But it is the law...
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Postby OhioMike » Wed Jun 04, 2008 9:47 am

I did not mean to jump on you.....

That is one of the big reasons to get an Expungement (Sealed Record in Ohio)
so you can legally purchase an own a firearm. It gives you the legal rights
to check the "NO" box regarding Felonies. If you check yes and take your paperwork
stating that you have obtained a "Sealed Record" or "Relief From Disability"
the gun shop will have to DENY the sales because you have checked YES

You will not pass the NICS check without the "Sealed Record". Once you get the
"Sealed Record" you will pass the NICS check. Gee I wonder why?
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Postby OhioMike » Wed Jun 04, 2008 9:51 am

James Beatty...

Sorry my friend you are wrong, as the Sealed Record superceeds that law
and grants the individual that obtains the Sealed Record a status just as if
they never commited the crime

I guess you know because you went through all this wheras I did :roll:
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Postby OhioMike » Wed Jun 04, 2008 10:03 am

Ponder this.....

Why would the new law allow you to carry concealed with a Felony record
once your record is SEALED, but on the same time say it is ILLEGAL to
buy a firearm.

If it is still illegal to buy a firearm then it would still be illegal to
be AROUND a firearm, so how could you carry a firearm?

A FELONY conviction totally strips your firearm rights. You can't own
one, you can't carry one, you can't even go to a gun show legally

The Feds have ALLWAYS recognized the court document that "Seals your Record"
It is only local Ohio law that has caused us problems as they could NOT
effect laws stopping the purchase and ownership of a firearm after a Sealed Record
but they COULD stop you from obtaining your Concealed Carry License as
they are the ones issuing the license
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Postby SeanC » Wed Jun 04, 2008 10:10 am

It always seems to me like people want to discuss sealed/exponged records in conjunction with restoration of firearms rights, but they're totally separate issues.

For ANY drug offenses, you will become subject to an OHIO disqualifier. For ANY felony conviction, you will be subject to an OHIO and FEDERAL disqualifier. Even if you get your records sealed, you will still have a firearms disability following you around. To get the disability removed, you need to petition the courts.

One good reason to be thankful you live in Ohio is that U.S. v. Cassidy is still good law in our jurisdiction. That case, from the United States Court of Appeals for the Sixth Circuit, holds that:
Congress intended that courts refer to state law to determine whether an individual should be subject to federal firearms disabilities by virtue of a criminal conviction. If state law has restored civil rights to a felon, without expressly limiting the felon's firearms privileges, that felon is not subject to federal firearms disabilities. This is the clear and unambiguous intent of Congress as expressed in section 921(a)(20).


Under Cassidy, the federal disqualifier is removed when the felon's civil rights are restored (even if the right to keep and bear arms is not specifically mentioned, so long as it is not specifically excluded). That's no the case in the other forty-six states... just in our particular circuit.

In Ohio, civil rights other than second amendment rights are restored upon the felon's release from the criminal justice system. To get firearms rights restored, you need to petition the court. Cassidy is pretty clear that once the STATE determines that the felon is no longer prohibited from possessing a firearm, the federal government will accept that determination.
The above is my personal, information opinion and is not legal advice. It does not necessarily represent the views or positions of my clients.
The Handbook of Ohio Firearms Law
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Postby wheeler2823 » Wed Jun 04, 2008 10:10 am

Actually I can and do answer NO on the form 4473 when asked if I have been convicted or pled guilty to a felony. If we examine the gun control act definitions in the United States Code we see that

"What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. "

So after I was granted relief from disability I do NOT have to check yes on a 4473. If you read on the ATF website they say the same thing. If you have had you conviction sealed, expunged, set aside, or had your rights restored you are NOT considered convicted for purposes of the gun control act.

The problem I have is with NICS interpretation of a case from 1998 US v Caron. Long story, but needless to say, according to the Gun Control Act and Ohio law, I am legal and have no disabilities related to firearms.

Same goes for Mike.
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