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Thread: DUI Question

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    DUI Question

    I got the following request for information, and thought it might be of general interest:

    "Several years ago (I'm thinking about 7ish) I plead guilty to a DUI charge in Virginia.
    A short time after the conviction I received a letter from the state [*assuming that means Virginia*] saying my concealed handgun permit was revoked because of the conviction. Fast forward to present day I now live in a different state and have a concealed handgun permit that reciprocates with Virginia. Am I legal to concealed carry in Virginia?"

    The answer is that a DUI (or conviction for a similar offense in another jurisdiction) will disqualify a person from carrying concealed for a period of three years after the offense. During that three year period, the person is not eligible for a permit and any concealed carry will be treated as a violation of 18.2-308 (See 18.2-308(E)(9)).

    If, as this person asks, he can lawfully carry concealed using a resident CHP from another state with which Virginia shares reciprocity, and it's been seven years since the conviction, that's no problem.

    But as far as I can tell, it's perfectly legal to carry openly after a DUI in Virginia, CHP or no CHP, as long as one is otherwise eligible to be in possession of a firearm.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Thank you for sharing and glad to see you still come by here.

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    Founder's Club Member - Moderator ed's Avatar
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    Quote Originally Posted by user View Post
    I got the following request for information, and thought it might be of general interest:

    "Several years ago (I'm thinking about 7ish) I plead guilty to a DUI charge in Virginia.
    A short time after the conviction I received a letter from the state [*assuming that means Virginia*] saying my concealed handgun permit was revoked because of the conviction. Fast forward to present day I now live in a different state and have a concealed handgun permit that reciprocates with Virginia. Am I legal to concealed carry in Virginia?"

    The answer is that a DUI (or conviction for a similar offense in another jurisdiction) will disqualify a person from carrying concealed for a period of three years after the offense. During that three year period, the person is not eligible for a permit and any concealed carry will be treated as a violation of 18.2-308 (See 18.2-308(E)(9)).

    If, as this person asks, he can lawfully carry concealed using a resident CHP from another state with which Virginia shares reciprocity, and it's been seven years since the conviction, that's no problem.

    But as far as I can tell, it's perfectly legal to carry openly after a DUI in Virginia, CHP or no CHP, as long as one is otherwise eligible to be in possession of a firearm.
    Crap.. I read this completely.. am I gonna get a bill?
    Carry On.

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    Quote Originally Posted by ed View Post
    Crap.. I read this completely.. am I gonna get a bill?
    Did you WANT a bill? LOL
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    Quote Originally Posted by user View Post
    The answer is that a DUI (or conviction for a similar offense in another jurisdiction) will disqualify a person from carrying concealed for a period of three years after the offense. During that three year period, the person is not eligible for a permit and any concealed carry will be treated as a violation of 18.2-308 (See 18.2-308(E)(9)).

    If, as this person asks, he can lawfully carry concealed using a resident CHP from another state with which Virginia shares reciprocity, and it's been seven years since the conviction, that's no problem.

    But as far as I can tell, it's perfectly legal to carry openly after a DUI in Virginia, CHP or no CHP, as long as one is otherwise eligible to be in possession of a firearm.
    Reading 18.2-308(E)(9), it only says that a person who is convicted of violating 18.2-266 (or similar statute) is deemed to be disqualified from obtaining a permit, and 18.2-308(J) requires Virginia to revoke a permit for such a violation, but that doesn't say that they are disqualified from using an unrevoked permit issued by another state. At the same time, there don't appear to be any such restrictions regarding reciprocity in 18.2-308(P) (authorizing reciprocity agreements with other states).

    Doesn't that mean that another state's CHP (or whatever term they use locally) would still be valid (and therefore concealed carry would not be a violation of 18.2-308) even if a person's Virginia permit is revoked for a violation that would have deemed them disqualified?
    Last edited by grylnsmn; 08-20-2012 at 08:27 AM.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
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    Regular Member TFred's Avatar
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    Quote Originally Posted by grylnsmn View Post
    Reading 18.2-308(E)(9), it only says that a person who is convicted of violating 18.2-266 (or similar statute) is deemed to be disqualified from obtaining a permit, and 18.2-308(J) requires Virginia to revoke a permit for such a violation, but that doesn't say that they are disqualified from using an unrevoked permit issued by another state. At the same time, there don't appear to be any such restrictions regarding reciprocity in 18.2-308(P) (authorizing reciprocity agreements with other states).

    Doesn't that mean that another state's CHP (or whatever term they use locally) would still be valid (and therefore concealed carry would not be a violation of 18.2-308) even if a person's Virginia permit is revoked for a violation that would have deemed them disqualified?
    Based on my understanding of what a "permit" is in the first place, no. IMHO, this would ultimately need to come before a judge to find the real answer.

    The "TFred school of permits" teaches that a permit is not a tangible piece of paper or card, it is an "intangible status of being granted the approval to carry a gun in a concealed manner". If you wish to do this in Virginia, then Virginia MUST grant you this permission. In cases of using an out-of-state piece of paper, the state of Virginia has declared that they will accept the background check that was performed by that other state, and evidenced by the piece of paper that the other state gave you, to show all concerned that Virginia has also granted you that permission (permitted) to carry concealed in Virginia. This is completely logical, no other state can give you permission to do anything in Virginia, and it is Virginia's declaration to accept those other states' permits that allows you to carry concealed using that other piece of paper.

    If Virginia's laws provide for specific circumstances which will result in the withdrawal of their approval to do so, it doesn't matter whether you were using Virginia's piece of paper, or another state's piece of paper. You are then no longer "permitted" to carry concealed.

    There are no cites for this, it is my opinion, based on how I understand the function of a permit to work. As I said, you really would probably need to be a test case to determine the validity of my opinion.

    TFred
    Last edited by TFred; 08-20-2012 at 03:07 PM. Reason: Grammar

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by TFred View Post
    Based on my understanding of what a "permit" is in the first place, no. IMHO, this would ultimately need to come before a judge to find the real answer.

    The "TFred school of permits" teaches that a permit is not a tangible piece of paper or card, it is an "intangible status of being granted the approval to carry a gun in a concealed manner". If you wish to do this in Virginia, then Virginia MUST grant you this permission. In cases of using an out-of-state piece of paper, the state of Virginia has declared that they will accept the background check that was performed by that other state, and evidenced by the piece of paper that the other state gave you, to show all concerned that Virginia has also granted you that permission (permitted) to carry concealed in Virginia. This is completely logical, no other state can give you permission to do anything in Virginia, and it is Virginia's declaration to accept those other states' permits that allow you to carry concealed using that other piece of paper.

    If Virginia's laws provide for specific circumstances which will result in the withdrawal of their approval to do so, it doesn't matter whether you were using Virginia's piece of paper, or another state's piece of paper. You are then no longer "permitted" to carry concealed.

    There are no cites for this, it is my opinion, based on how I understand the function of a permit to work. As I said, you really would probably need to be a test case to determine the validity of my opinion.

    TFred
    I think you could compare that to the pre Big Brother days when you could move out of state and get a drivers license after having your Va License suspended/revoked.

    If you got caught driving in Virginia, you were going to get free cooking for a while.

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    Quote Originally Posted by peter nap View Post
    I think you could compare that to the pre Big Brother days when you could move out of state and get a drivers license after having your Va License suspended/revoked.

    If you got caught driving in Virginia, you were going to get free cooking for a while.
    And this makes perfect sense, especially to those pushing for a Nation-wide reciprocity. Unlike driving, for now at least there are too many diverse rules for carrying a gun. Ironic, considering it is a right to carry a gun, but a privilege to drive, no?

    TFred

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    Quote Originally Posted by TFred View Post
    Based on my understanding of what a "permit" is in the first place, no. IMHO, this would ultimately need to come before a judge to find the real answer.

    The "TFred school of permits" teaches that a permit is not a tangible piece of paper or card, it is an "intangible status of being granted the approval to carry a gun in a concealed manner". If you wish to do this in Virginia, then Virginia MUST grant you this permission. In cases of using an out-of-state piece of paper, the state of Virginia has declared that they will accept the background check that was performed by that other state, and evidenced by the piece of paper that the other state gave you, to show all concerned that Virginia has also granted you that permission (permitted) to carry concealed in Virginia. This is completely logical, no other state can give you permission to do anything in Virginia, and it is Virginia's declaration to accept those other states' permits that allows you to carry concealed using that other piece of paper.

    If Virginia's laws provide for specific circumstances which will result in the withdrawal of their approval to do so, it doesn't matter whether you were using Virginia's piece of paper, or another state's piece of paper. You are then no longer "permitted" to carry concealed.

    There are no cites for this, it is my opinion, based on how I understand the function of a permit to work. As I said, you really would probably need to be a test case to determine the validity of my opinion.
    Except, I'm not seeing where the law itself says that. 18.2-308(P) certainly doesn't say anything of the sort.

    18.2-308(E) and 18.2-308(F) outline the items that disqualify a person from receiving a permit, but those sections only apply to the issuance of permits in Virginia. 18.2-308(J) allows Virginia to revoke a permit issued by the state because of a subsequent violation listed in 18.2-308(E) or because you lied on your application (18.2-308(F)). Neither of those sections have anything to do with reciprocity, though.

    Reciprocity, on the other hand, is governed by 18.2-308(P), which states:
    A valid concealed handgun or concealed weapon permit or license issued by another state shall authorize the holder of such permit or license who is at least 21 years of age to carry a concealed handgun in the Commonwealth, provided (i) the issuing authority provides the means for instantaneous verification of the validity of all such permits or licenses issued within that state, accessible 24 hours a day, and (ii) except for the age of the permit or license holder and the type of weapon authorized to be carried, the requirements and qualifications of that state's law are adequate to prevent possession of a permit or license by persons who would be denied a permit in the Commonwealth under this section. The Superintendent of State Police shall (a) in consultation with the Office of the Attorney General determine whether states meet the requirements and qualifications of this section, (b) maintain a registry of such states on the Virginia Criminal Information Network (VCIN), and (c) make the registry available to law-enforcement officers for investigative purposes. The Superintendent of the State Police, in consultation with the Attorney General, may also enter into agreements for reciprocal recognition with any state qualifying for recognition under this subsection.
    Now, the part I put in blue says that a permit issued by another state shall authorize a person to carry (providing the state meets the listed criteria). You might argue that the part I put in red would invalidate reciprocity if someone would be denied a Virginia permit, but it doesn't actually say that. It only talks about the requirements of the reciprocal state's laws being "adequate". It doesn't provide for picking and choosing which permits from a recognized state it will honor. For each state, it appears to be all or nothing.

    I don't see anything in that section that actually prohibits a person who has a valid, unrevoked permit from a recognized reciprocal state from using that permit to carry concealed in Virginia, even if their permit in Virginia may have been revoked under 18.2-308(J) or they were initially deemed disqualified under 18.2-308(E).
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    I would not want to go before a judge, when a LEO finds me carrying on an out of state permit AND that I have a revoked VA CHP - think that might go badly (expensive) even if I ultimately were to win.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

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    Quote Originally Posted by Grapeshot View Post
    I would not want to go before a judge, when a LEO finds me carrying on an out of state permit AND that I have a revoked VA CHP - think that might go badly (expensive) even if I ultimately were to win.
    Ultimately, I would say that this sort of attitude is the most dangerous one.

    After all, couldn't you say the same thing about open carry in general, particularly in places like Richmond, that want to prohibit it? You might ultimately win, but it would still go badly for you to fight?

    The law is the law. If the legal system is determined to punish someone who is obeying the law, then the problem isn't with the accused, but with the system itself. We need to fix that problem, not cower before it.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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    Quote Originally Posted by grylnsmn View Post
    Ultimately, I would say that this sort of attitude is the most dangerous one.

    After all, couldn't you say the same thing about open carry in general, particularly in places like Richmond, that want to prohibit it? You might ultimately win, but it would still go badly for you to fight?

    The law is the law. If the legal system is determined to punish someone who is obeying the law, then the problem isn't with the accused, but with the system itself. We need to fix that problem, not cower before it.
    Dangerous? Decidedly not. What is left to the discretion of the judge is reading/interpreting the intent of the General Assembly and IMHO the intent was to cause the individual not not be able to legally CC.

    I agree that when the law is not clear it needs to be fixed. Would seem that you are suggesting that holding court in the street is the way to go - to this end I respectfully disagree and that is hardly cowering.

    BTW - If The City of Richmond wants to buy me a new truck and pay my legal expenses too, that is their business.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by grylnsmn View Post
    I don't see anything in that section that actually prohibits a person who has a valid, unrevoked permit from a recognized reciprocal state from using that permit to carry concealed in Virginia, even if their permit in Virginia may have been revoked under 18.2-308(J) or they were initially deemed disqualified under 18.2-308(E).
    As I said earlier, it all hinges on whether a permit is a piece of paper or an intangible status of being granted a permission to do something. I am confident it is the latter, but again as I said, there is no concrete proof of this at this time, at least not that I am aware of.

    The new law separating the carry of the paper from committing a concealed carry violation does push us more that way, however.

    TFred

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    Quote Originally Posted by TFred View Post
    As I said earlier, it all hinges on whether a permit is a piece of paper or an intangible status of being granted a permission to do something. I am confident it is the latter, but again as I said, there is no concrete proof of this at this time, at least not that I am aware of.

    The new law separating the carry of the paper from committing a concealed carry violation does push us more that way, however.
    Except, even if you look at it as only an intangible status, that still doesn't change the overall analysis.

    Essentially, for the common citizen, there are three means by which you can be granted that intangible status:

    1) You can apply to Virginia for a permit under 18.2-308(D), in which case you must meet the criteria set forth in 18.2-308(E-G). Such permits are granted by the Court, and in the event that a person later fails to meet the criteria in 18.2-308(E-G), the Court can revoke it (as per 18.2-308(J)). Similarly, 18.2-308(J1-4) give other situations under which the Court can revoke that permit.

    2) You can apply for a permit from another state with which Virginia has established reciprocity under 18.2-308(P).

    3) If you are a non-resident of Virginia, you can apply to the State Police for a CHP under 18.2-308(P1). Under that section, the State Police also have the authority to revoke the permit if you become a disqualified person at a later date.

    An important principle is that a grant of status can only be revoked by the same entity that gave that grant in the first place, or an entity superior to that entity. We see this in who the statues say may revoke a permit. 18.2-308(J) (including J1-4), all say that the Court shall revoke the permit, in keeping with the Court issuing the permit under 18.2-308(D). 18.2-308(P1) states that the State Police shall revoke non-resident permits (which were issued by the State Police under 18.2-308(P1)).

    However, 18.2-308(P) has no provisions for revoking a permit from a reciprocal state, because those permits were not issued by any authority in Virginia, and so Virginia has no authority to revoke them. In that case, the grant of status comes purely by statute (recognizing the grant given by a different state), and so it could only be revoked by statute (providing an exception to the blanket grant to reciprocal CHP holders).

    If there are multiple means to gain a grant of status, just because you are disqualified under one method does not necessarily mean that you are disqualified under all means of receiving that status. For example, a Commonwealth's Attorney can be disqualified from getting a CHP under 18.2-308(E)(9), and yet still have the legal status of permission to carry concealed under 18.2-308(B)(9). Similarly, a person can be disqualified under 18.2-308(E)(9) and have their permit was revoked under 18.2-308(J), but still receive that status through 18.2-308(P).
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    Quote Originally Posted by grylnsmn View Post
    Except, even if you look at it as only an intangible status, that still doesn't change the overall analysis.

    Essentially, for the common citizen, there are three means by which you can be granted that intangible status:

    1) You can apply to Virginia for a permit under 18.2-308(D), in which case you must meet the criteria set forth in 18.2-308(E-G). Such permits are granted by the Court, and in the event that a person later fails to meet the criteria in 18.2-308(E-G), the Court can revoke it (as per 18.2-308(J)). Similarly, 18.2-308(J1-4) give other situations under which the Court can revoke that permit.

    2) You can apply for a permit from another state with which Virginia has established reciprocity under 18.2-308(P).

    3) If you are a non-resident of Virginia, you can apply to the State Police for a CHP under 18.2-308(P1). Under that section, the State Police also have the authority to revoke the permit if you become a disqualified person at a later date.

    An important principle is that a grant of status can only be revoked by the same entity that gave that grant in the first place, or an entity superior to that entity. We see this in who the statues say may revoke a permit. 18.2-308(J) (including J1-4), all say that the Court shall revoke the permit, in keeping with the Court issuing the permit under 18.2-308(D). 18.2-308(P1) states that the State Police shall revoke non-resident permits (which were issued by the State Police under 18.2-308(P1)).

    However, 18.2-308(P) has no provisions for revoking a permit from a reciprocal state, because those permits were not issued by any authority in Virginia, and so Virginia has no authority to revoke them. In that case, the grant of status comes purely by statute (recognizing the grant given by a different state), and so it could only be revoked by statute (providing an exception to the blanket grant to reciprocal CHP holders).

    If there are multiple means to gain a grant of status, just because you are disqualified under one method does not necessarily mean that you are disqualified under all means of receiving that status. For example, a Commonwealth's Attorney can be disqualified from getting a CHP under 18.2-308(E)(9), and yet still have the legal status of permission to carry concealed under 18.2-308(B)(9). Similarly, a person can be disqualified under 18.2-308(E)(9) and have their permit was revoked under 18.2-308(J), but still receive that status through 18.2-308(P).
    You make a well reasoned case, but I don't agree with you at all.

    It is my contention that only the state of Virginia can allow you to carry concealed within Virginia. All the rest are just the mechanisms by which all concerned are made aware of that allowance. These mechanisms are not perfect in their application, and I think it is clear we are talking about a fairly low occasion of occurrence in this scenario.

    You don't see it that way. Until it gets in front of a judge, we'll never know for sure.

    TFred

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    Quote Originally Posted by TFred View Post
    You make a well reasoned case, but I don't agree with you at all.

    It is my contention that only the state of Virginia can allow you to carry concealed within Virginia. All the rest are just the mechanisms by which all concerned are made aware of that allowance. These mechanisms are not perfect in their application, and I think it is clear we are talking about a fairly low occasion of occurrence in this scenario.

    You don't see it that way. Until it gets in front of a judge, we'll never know for sure.

    TFred
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    Quote Originally Posted by TFred View Post
    You make a well reasoned case, but I don't agree with you at all.

    It is my contention that only the state of Virginia can allow you to carry concealed within Virginia. All the rest are just the mechanisms by which all concerned are made aware of that allowance. These mechanisms are not perfect in their application, and I think it is clear we are talking about a fairly low occasion of occurrence in this scenario.

    You don't see it that way. Until it gets in front of a judge, we'll never know for sure.
    What is your citation for authority?

    The state of Virginia has stated the criteria in law for what exempts a person from the prohibition on carrying concealed. What in that criteria allows any Virginia entity to revoke that exemption for someone with a valid permit issued by a reciprocal state under 18.2-308(P)?

    Quite simply, the General Assembly chose to allow other states' permits to be recognized as valid without providing for a case-by-case exemption to that provision. A Circuit Court doesn't have the authority to revoke another state's permit, nor does the State Police. Only the other state can revoke that permit. A Circuit Court doesn't have the authority to unilaterally strip someone of a permit to carry concealed unless that permit was issued by that Circuit Court. Similarly, the State Police cannot revoke a permit unless they were the ones to issue it.

    In fact, 18.2-308(J) makes this extremely clear that (for example) a Richmond court cannot revoke a permit issued by the Fairfax courts.
    Any person convicted of an offense that would disqualify that person from obtaining a permit under subsection E or who violates subsection F shall forfeit his permit for a concealed handgun and surrender it to the court. Upon receipt by the Central Criminal Records Exchange of a record of the arrest, conviction or occurrence of any other event that would disqualify a person from obtaining a concealed handgun permit under subsection E, the Central Criminal Records Exchange shall notify the court having issued the permit of such disqualifying arrest, conviction or other event. Upon receipt of such notice of a conviction, the court shall revoke the permit of a person disqualified pursuant to this subsection, and shall promptly notify the State Police and the person whose permit was revoked of the revocation.
    18.2-308(D) also makes that clear:
    If the applicant is found to be disqualified after the de facto permit is issued, the applicant shall surrender the de facto permit to the court and the disqualification shall be deemed a denial of the permit and a revocation of the de facto permit. If the applicant is later found by the court to be disqualified after a five-year permit has been issued, the permit shall be revoked.
    If a permit was not issued by a Virginia court, then no Virginia can revoke it under 18.2-308(J) or 18.2-308(D).

    Similarly, a non-resident permit issued by the State Police can only be revoked by the State Police. From 18.2-308(P1):
    If the permittee is later found by the Department of State Police to be disqualified, the permit shall be revoked and the person shall return the permit after being so notified by the Department of State Police.
    However, this only applies to permits issued under 18.2-308(P1).

    A person with a valid, reciprocal state permit isn't carrying pursuant to either of those provisions. They are carrying under a grant of authority that comes from neither a Virginia court nor the State Police. Instead, their grant of authority comes directly from the General Assembly, under 18.2-308(P). As such, only an act of the General Assembly can revoke that authorization.

    Do you have a citation for where such a revocation is found in Virginia law? It's not found in 18.2-308. The only places that mention anything about revoking a permit are the ones I listed above (plus J1 and J4, which are essentially the same as in J), none of which can revoke another state's permit. (The only other mentions of the word "revoke" in its various forms otherwise deals with a revoked permit not being valid to establish competency with a firearm.)

    If your interpretation is right, then where is such authority to revoke an authorization under 18.2-308(P) written in law?
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    Quote Originally Posted by grylnsmn View Post
    What is your citation for authority?

    The state of Virginia has stated the criteria in law for what exempts a person from the prohibition on carrying concealed. What in that criteria allows any Virginia entity to revoke that exemption for someone with a valid permit issued by a reciprocal state under 18.2-308(P)?

    Quite simply, the General Assembly chose to allow other states' permits to be recognized as valid without providing for a case-by-case exemption to that provision. A Circuit Court doesn't have the authority to revoke another state's permit, nor does the State Police. Only the other state can revoke that permit. A Circuit Court doesn't have the authority to unilaterally strip someone of a permit to carry concealed unless that permit was issued by that Circuit Court. Similarly, the State Police cannot revoke a permit unless they were the ones to issue it.

    In fact, 18.2-308(J) makes this extremely clear that (for example) a Richmond court cannot revoke a permit issued by the Fairfax courts.18.2-308(D) also makes that clear:If a permit was not issued by a Virginia court, then no Virginia can revoke it under 18.2-308(J) or 18.2-308(D).

    Similarly, a non-resident permit issued by the State Police can only be revoked by the State Police. From 18.2-308(P1):However, this only applies to permits issued under 18.2-308(P1).

    A person with a valid, reciprocal state permit isn't carrying pursuant to either of those provisions. They are carrying under a grant of authority that comes from neither a Virginia court nor the State Police. Instead, their grant of authority comes directly from the General Assembly, under 18.2-308(P). As such, only an act of the General Assembly can revoke that authorization.

    Do you have a citation for where such a revocation is found in Virginia law? It's not found in 18.2-308. The only places that mention anything about revoking a permit are the ones I listed above (plus J1 and J4, which are essentially the same as in J), none of which can revoke another state's permit. (The only other mentions of the word "revoke" in its various forms otherwise deals with a revoked permit not being valid to establish competency with a firearm.)

    If your interpretation is right, then where is such authority to revoke an authorization under 18.2-308(P) written in law?
    I have no cites, I never claimed to have cites, at every post where I have shared my view of what a permit is, I have clearly stated that it was my opinion based on my understanding of just that, the concept of a permit being a license or approval to do something, and not a piece of paper or a card.

    Save all your wonderfully researched notes, use them if you are ever in court for this problem. I don't mean to be rude, but I really don't care. We aren't trying a case here. I will maintain my opinion until shown otherwise, if Virginia decides you aren't eligible to carry a concealed handgun, they aren't going to give a rat's 'you know what' about what other cards you might have in your pocket.

    TFred

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    Quote Originally Posted by TFred View Post
    I have no cites, I never claimed to have cites, at every post where I have shared my view of what a permit is, I have clearly stated that it was my opinion based on my understanding of just that, the concept of a permit being a license or approval to do something, and not a piece of paper or a card.

    Save all your wonderfully researched notes, use them if you are ever in court for this problem. I don't mean to be rude, but I really don't care. We aren't trying a case here. I will maintain my opinion until shown otherwise, if Virginia decides you aren't eligible to carry a concealed handgun, they aren't going to give a rat's 'you know what' about what other cards you might have in your pocket.
    Then answer me this: By your theory, could someone whose permit was revoked for something in 18.2-308(E) that wouldn't otherwise render them ineligible to possess a firearm (so, something like E-7 or E-9) place a loaded handgun in a secured container in a personal, private motor vehicle? Or how about carry concealed in their own place of business? After all, you are arguing that their permission to carry concealed was revoked by Virginia, and so they wouldn't be allowed to carry concealed at all, right?

    Except, 18.2-308(B)(10) and 18.2-308(B)(1) (respectively) grant that permission separate from the permission granted through the issuance of a resident permit in 18.2-308(D), and separate from the granting of a non-resident permit in 18.2-308(P1). Similarly, 18.2-308(P) grants that permission separate from any of those other provisions.

    If having a permit revoked in 18.2-308(J), 18.203-8(J1), 18.2-308(J4), or 18.203-8(P1) wouldn't affect the separate grant of permission in 18.2-308(B)(10) or 18.2-308(B)(1), then why would it affect the separate grant of permission in 18.2-308(P)?

    Alternately, if you think that it legally wouldn't revoke that separate grant of permission, but the police and courts would just ignore the legal defense anyways, then what should we do about it? After all, isn't one of our goals supposed to be holding government to actually obeying the laws?

    For the record, I doubt that I will ever be in this situation, particularly from a DUI, as I don't drink and never will. (I have both religious reasons against it, as well as a long family history showing a predisposition for addiction.) However, I do think that it's important that we hold the government to what the law actually says, and not let them expand it at their own whim. To me, the idea of a court trying to revoke a valid out-of-state permit is like the Richmond Library trying to ban concealed handguns "except as permitted by law". Both are breaking the law and should be called out on it.
    Last edited by grylnsmn; 08-23-2012 at 07:38 AM.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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    Quote Originally Posted by grylnsmn View Post
    Then answer me this: By your theory, could someone whose permit was revoked for something in 18.2-308(E) that wouldn't otherwise render them ineligible to possess a firearm (so, something like E-7 or E-9) place a loaded handgun in a secured container in a personal, private motor vehicle? Or how about carry concealed in their own place of business? After all, you are arguing that their permission to carry concealed was revoked by Virginia, and so they wouldn't be allowed to carry concealed at all, right?

    Except, 18.2-308(B)(10) and 18.2-308(B)(1) (respectively) grant that permission separate from the permission granted through the issuance of a resident permit in 18.2-308(D), and separate from the granting of a non-resident permit in 18.2-308(P1). Similarly, 18.2-308(P) grants that permission separate from any of those other provisions.

    If having a permit revoked in 18.2-308(J), 18.203-8(J1), 18.2-308(J4), or 18.203-8(P1) wouldn't affect the separate grant of permission in 18.2-308(B)(10) or 18.2-308(B)(1), then why would it affect the separate grant of permission in 18.2-308(P)?

    Alternately, if you think that it legally wouldn't revoke that separate grant of permission, but the police and courts would just ignore the legal defense anyways, then what should we do about it? After all, isn't one of our goals supposed to be holding government to actually obeying the laws?

    For the record, I doubt that I will ever be in this situation, particularly from a DUI, as I don't drink and never will. (I have both religious reasons against it, as well as a long family history showing a predisposition for addiction.) However, I do think that it's important that we hold the government to what the law actually says, and not let them expand it at their own whim. To me, the idea of a court trying to revoke a valid out-of-state permit is like the Richmond Library trying to ban concealed handguns "except as permitted by law". Both are breaking the law and should be called out on it.
    Remember how the CHP code is structured.

    First, it is illegal to carry a concealed weapon. (A.)
    Second, the entire section of code does not apply to a certain list of people and circumstances. (B. and C.)
    Finally, third, if you want to otherwise carry a concealed handgun, here is how you can get the approval of the state to do it. (D. ff)

    Your examples (bolded above for reference) fall into the Second category, and are specifically exempted from what makes it illegal in the first place.

    The issue we are debating (including the other details you mention, E-7 and E-9 and the rest of the post) concerns the Third part, how to "otherwise" receive approval from the state to legally carry a concealed handgun.

    TFred
    Last edited by TFred; 08-23-2012 at 05:12 PM.

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    Quote Originally Posted by TFred View Post
    Remember how the CHP code is structured.

    First, it is illegal to carry a concealed weapon. (A.)
    Second, the entire section of code does not apply to a certain list of people and circumstances. (B. and C.)
    Finally, third, if you want to otherwise carry a concealed handgun, here is how you can get the approval of the state to do it. (D. ff)

    Your examples (bolded above for reference) fall into the Second category, and are specifically exempted from what makes it illegal in the first place.

    The issue we are debating (including the other details you mention, E-7 and E-9 and the rest of the post) concerns the Third part, how to "otherwise" receive approval from the state to legally carry a concealed handgun.

    TFred
    Except that the Third part, as you describe it, gives three different ways to get approval from the state. Those three ways are in D (resident permit), P (reciprocal permit), and P1 (non-resident permit). Just because you cannot receive that approval from the state through one way doesn't mean that you cannot get it through another way.

    D and P1 both have ways for the state to revoke the permit, but P does not. That has to make a difference.

    There is no discretion given in P for whether or not to accept an out-of-state permit. If it is from a state that Virginia recognizes, as stated in VCIN, and it is valid according to that state, then it is a valid permit. In fact, the only criteria Virginia places on top of a valid out-of-state permit from a recognized reciprocal state is the age of the permit holder (requiring a permit holder be at least 21).

    That's what the law explicitly says:
    A valid concealed handgun or concealed weapon permit or license issued by another state shall authorize the holder of such permit or license who is at least 21 years of age to carry a concealed handgun in the Commonwealth, provided (i) the issuing authority provides the means for instantaneous verification of the validity of all such permits or licenses issued within that state, accessible 24 hours a day, and (ii) except for the age of the permit or license holder and the type of weapon authorized to be carried, the requirements and qualifications of that state's law are adequate to prevent possession of a permit or license by persons who would be denied a permit in the Commonwealth under this section. The Superintendent of State Police shall (a) in consultation with the Office of the Attorney General determine whether states meet the requirements and qualifications of this section, (b) maintain a registry of such states on the Virginia Criminal Information Network (VCIN), and (c) make the registry available to law-enforcement officers for investigative purposes. The Superintendent of the State Police, in consultation with the Attorney General, may also enter into agreements for reciprocal recognition with any state qualifying for recognition under this subsection.
    The key part is what I bolded in red. It says that a valid out-of-state permit shall (not may) authorize the holder of that permit to carry a concealed handgun in the Commonwealth. It then goes on to provide criteria for what other states will be recognized, but other than age it does not place any further criteria on the permit holder himself.

    The use of "shall" in the wording of the law, without any further (relevant) limitation removes discretion to decide whether it is valid or not. The person holding the valid out-of-state permit is authorized by law, even if he would be ineligible to receive a permit directly from Virginia.
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    Thinking about it a little more this morning, I think the terminology you are using in your interpretation is imprecise, at least as the current law goes.

    You claim that a permit isn't the document itself, but rather that it is a state of being granted permission from the state. I agree that the concept you describe is in the law, but not in the way that you describe it.

    I would argue that there is a difference between a permit and authorization. The key to this is in 18.2-308(P) (as I quoted in my post above), as well as in 18.2-308(R). The permit is the actual document, but possession of a valid document is what grants you the authorization to carry concealed. (In security, authorization is different from authentication. A resident permit shows authorization, but requires photo ID to provide authentication.)

    You can see this clearly in 18.2-308(R), which states:
    For the purposes of participation in concealed handgun reciprocity agreements with other jurisdictions, the official government-issued law-enforcement identification card issued to an active-duty law-enforcement officer in the Commonwealth who is exempt from obtaining a concealed handgun permit under this section shall be deemed a concealed handgun permit.
    A LEO ID card (as in the document itself) is deemed to be a CHP for someone who is exempt from obtaining a CHP. That rather clearly suggests that the permit referenced in the rest of 18.2-308 is referring to the actual document.

    If that document is revoked, then it becomes invalid, and therefore cannot grant the authorization to carry concealed, but that doesn't mean that the authorization and the permit are the same thing.
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    Quote Originally Posted by grylnsmn View Post
    Thinking about it a little more this morning, I think the terminology you are using in your interpretation is imprecise, at least as the current law goes.

    You claim that a permit isn't the document itself, but rather that it is a state of being granted permission from the state. I agree that the concept you describe is in the law, but not in the way that you describe it.

    I would argue that there is a difference between a permit and authorization. The key to this is in 18.2-308(P) (as I quoted in my post above), as well as in 18.2-308(R). The permit is the actual document, but possession of a valid document is what grants you the authorization to carry concealed. (In security, authorization is different from authentication. A resident permit shows authorization, but requires photo ID to provide authentication.)

    You can see this clearly in 18.2-308(R), which states:A LEO ID card (as in the document itself) is deemed to be a CHP for someone who is exempt from obtaining a CHP. That rather clearly suggests that the permit referenced in the rest of 18.2-308 is referring to the actual document.

    If that document is revoked, then it becomes invalid, and therefore cannot grant the authorization to carry concealed, but that doesn't mean that the authorization and the permit are the same thing.
    And this (bolded) is the critical point upon which we disagree. As noted in both the driver's license law and now this year, even the CHP code, it is not a crime to drive a car (or carry a concealed handgun) without your "card" on your person. Both are civil infractions, punishable by a relatively small fine, and which may even be tossed out completely if you show the court (after having been given a ticket for the offense) that you have indeed been granted the license or permit. In this day and age of computers, it makes less and less sense to require a card for any of this, as long as they can ascertain your identity, your life's history is available at the push of a button. These changes are a result of emerging technology. When drivers licenses and permits were first used, sure, the card meant everything because they were the only option. As these cases are being discovered, the law is changing to see that it is the status, and not the card that counts. The original idea was simply a necessary and inaccurate way to look at it, because there were no alternatives. That is a free speculation on history, no cites...

    But I will cite you the code on this for CHPs, because I am proud to say that Delegate Cole (my delegate) entered this legislation. He tried it two years ago when it was shot down in the Death Committee for simply having the word "handgun" in it, but it made it through quite easily this past session, passing the Senate's Courts of Justice Committee AND the full Senate on unanimous votes!

    http://leg1.state.va.us/cgi-bin/legp...e?121+sum+HB26

    TFred

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    Quote Originally Posted by TFred View Post
    And this (bolded) is the critical point upon which we disagree. As noted in both the driver's license law and now this year, even the CHP code, it is not a crime to drive a car (or carry a concealed handgun) without your "card" on your person. Both are civil infractions, punishable by a relatively small fine, and which may even be tossed out completely if you show the court (after having been given a ticket for the offense) that you have indeed been granted the license or permit. In this day and age of computers, it makes less and less sense to require a card for any of this, as long as they can ascertain your identity, your life's history is available at the push of a button. These changes are a result of emerging technology. When drivers licenses and permits were first used, sure, the card meant everything because they were the only option. As these cases are being discovered, the law is changing to see that it is the status, and not the card that counts. The original idea was simply a necessary and inaccurate way to look at it, because there were no alternatives. That is a free speculation on history, no cites...

    But I will cite you the code on this for CHPs, because I am proud to say that Delegate Cole (my delegate) entered this legislation. He tried it two years ago when it was shot down in the Death Committee for simply having the word "handgun" in it, but it made it through quite easily this past session, passing the Senate's Courts of Justice Committee AND the full Senate on unanimous votes!

    http://leg1.state.va.us/cgi-bin/legp...e?121+sum+HB26

    TFred
    Therein lies the real crux of the matter. One presently needs to be authorized to carry concealed, but if you have not the issued paperwork on your person then you shall may be penalized civilly.

    Note that the officer still needs PC/RAS to demand you produce such evidence - CCing is not in and off itself evidence of a crime in any tense.
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    Quote Originally Posted by TFred View Post
    And this (bolded) is the critical point upon which we disagree. As noted in both the driver's license law and now this year, even the CHP code, it is not a crime to drive a car (or carry a concealed handgun) without your "card" on your person. Both are civil infractions, punishable by a relatively small fine, and which may even be tossed out completely if you show the court (after having been given a ticket for the offense) that you have indeed been granted the license or permit. In this day and age of computers, it makes less and less sense to require a card for any of this, as long as they can ascertain your identity, your life's history is available at the push of a button. These changes are a result of emerging technology. When drivers licenses and permits were first used, sure, the card meant everything because they were the only option. As these cases are being discovered, the law is changing to see that it is the status, and not the card that counts. The original idea was simply a necessary and inaccurate way to look at it, because there were no alternatives. That is a free speculation on history, no cites...

    But I will cite you the code on this for CHPs, because I am proud to say that Delegate Cole (my delegate) entered this legislation. He tried it two years ago when it was shot down in the Death Committee for simply having the word "handgun" in it, but it made it through quite easily this past session, passing the Senate's Courts of Justice Committee AND the full Senate on unanimous votes!

    http://leg1.state.va.us/cgi-bin/legp...e?121+sum+HB26
    Actually, the new law that you cite strongly supports my position, that a permit is merely the document while what you really need is the authorization to carry concealed (which possessing a valid permit grants you).

    The new law added a single sentence to 18.2-308(A), saying "It shall be an affirmative defense to a violation of clause (i) regarding a handgun, that a person had been issued, at the time of the offense, a valid concealed handgun permit."

    Nowhere in the rest of 18.2-308 does it define permit, and so we can reasonably assume that the word uses the same meaning throughout the section of code. The closest we get to a is in H, which states:
    The permit to carry a concealed handgun shall specify only the following information: name, address, date of birth, gender, height, weight, color of hair, color of eyes, and signature of the permittee; the signature of the judge issuing the permit, of the clerk of court who has been authorized to sign such permits by the issuing judge, or of the clerk of court who has been authorized to issue such permits pursuant to subsection D; the date of issuance; and the expiration date. The permit to carry a concealed handgun shall be no larger than two inches wide by three and one-fourth inches long and shall be of a uniform style prescribed by the Department of State Police.
    Immediately after that part of H it includes the rest of the changes from the new law, making it a civil penalty only to not carry your permit or ID when carrying concealed.

    However, the context of H makes it clear that the word permit refers to the actual document, not to the authorization that the document grants you. In R, it is also clearly referring to the permit as the document itself (because it deems a LEO ID as a CHP for purposes of reciprocity), not the authority to carry concealed (as Virginia cannot actually grant that authority in other states).

    Within that context, under 18.2-308(A), the issuance of a CHP by the state of Virginia (which would mean under 18.2-308(D) or 18.2-308(P1)) is an affirmative defense to the charge of carrying concealed. 18.2-308(P), on the other hand, explicitly authorizes the holder of a valid out-of-state permit holder to carry a concealed handgun (as long as the issuing state is listed in VCIN as meeting the statutory criteria). Similarly, 18.2-308(B) explicitly authorizes people to carry concealed based on a variety of conditions or circumstances (by exempting them from the law itself).

    I agree it is foolish to require a person carry a physical permit when the cop is just going to want to verify it in VCIN anyways. However, that doesn't mean that the permit itself is the same thing as the authorization to carry concealed. The issuance of the permit grants that authorization, but they are not the same thing. They are distinct, but related.

    To bring it around to the original topic of this thread, that means that even if a person has had their Virginia permit revoked (for any reason), if they still have a valid permit issued by another state, then they are still authorized to carry a concealed handgun in Virginia. (Of course, depending on the reason for the permit revocation, they may not be legally allowed to possess a handgun, but that is a separate issue.)
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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