DUI Question

TFred said:

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

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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.

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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.

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.

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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.

grylnsmn said:

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.

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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/legp504.exe?121+sum+HB26

TFred

TFred said:

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/legp504.exe?121+sum+HB26

TFred

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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 [strike]shall[/strike] 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.

TFred said:

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/legp504.exe?121+sum+HB26

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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.

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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.)

grylnsmn said:

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: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.)

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Actually, I can tell you that the reason the bolded part above was added (after the original submission of the bill) was to ensure there would be no confusion between the "handgun" parts of the code and the "other weapons" that are covered in the general prohibition on carrying them concealed.

As to the rest... you haven't said anything new. We all know the two points here, and neither of us are likely to change our minds until a judge settles it.

TFred

TFred said:

Actually, I can tell you that the reason the bolded part above was added (after the original submission of the bill) was to ensure there would be no confusion between the "handgun" parts of the code and the "other weapons" that are covered in the general prohibition on carrying them concealed.

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Since when was legislative intent binding in Virginia?

It may have been added for that reason, but the wording of it supports the claim that a permit refers to the document, not the authorization that a person receives to carry concealed.

TFred said:

As to the rest... you haven't said anything new. We all know the two points here, and neither of us are likely to change our minds until a judge settles it.

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And you've continually avoided the question of what in the law would prohibit someone from carrying on a valid out-of-state permit after their Virginia permit is revoked. Instead, you started going on about your theory of how a permit isn't actually a piece of paper (which again, isn't supported by the actual text of the law).

You've basically said that a permit is something other than what the law actually says it is, and to back it up, you've responded with statements to the effect of "It is because I think is should be".

I agree with you that we shouldn't need a slip of paper, and that needing to carry that paper with us to carry concealed is a joke. It's basically one more attempt to put a legal "gotcha" for someone who makes an honest mistake (leaving their wallet at home).

However, just because we think the law should be a certain way doesn't change what it currently is. We all agree with the legal truism that what is not prohibited is allowed. (After all, it's the entire basis for the legality of open carry.) The answer to the question raised by user in the first post can then be answered by citing what specific provision in the Virginia Code would prevent someone whose Virginia permit was revoked but who has a valid out-of-state permit issued by a state that Virginia recognizes for reciprocity from carrying concealed in Virginia.

A person with a DUI in the previous 3 years is deemed disqualified from obtaining a permit (18.2-308(E)(9)), and if they currently have a permit when they get the DUI it can be revoked by the issuing court (18.2-308(J)) or State Police (18.2-308(P1)), depending on who issued the permit, but neither of those sections relate to reciprocity of permits with other states.

Unless there is a section that generally prohibits someone from carrying concealed if they have a conviction for DUI in the previous 3 years (which 18.2-308(E)(9) is not - it only deems them disqualified from obtaining a permit), there is nothing that prohibits it, and with a valid out-of-state permit it is explicitly authorized (18.2-308(P)).

Can you point to such a section of code? If so, then I will gladly back down. If not, then you don't have any legal basis to claim that carrying concealed on a valid out-of-state permit after having a Virginia permit revoked is illegal.

Tomorrow is Saturday.

TFred

grylnsmn said:

<snip>If not, then you don't have any legal basis to claim that carrying concealed on a valid out-of-state permit after having a Virginia permit revoked is illegal.

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Wasn't that essentially what Daniel Lewis Hawes said back in the very first post in this thread? What he didn't make clear though was what would be the legal interpretation within the first three years after the infraction.