Relation of Driving Under the Influence Laws to Access to Firearms Across US States

Abstract

Objectives. To determine differences among US states in how driving under the influence of alcohol (DUI) laws activate federal firearm possession and purchase prohibitions.

Methods. We performed primary legislative research to characterize DUI laws in each state. The primary outcome was the number of DUI convictions an individual must be convicted of in each state to activate the federal firearm possession and purchase prohibition. We also determined the time interval in which previous DUI convictions count for future proceedings.

Results. Forty-seven states had DUI laws that activated the federal prohibition of firearm possession and purchase for a threshold number of repeated DUIs. Variation exists among states in the number of convictions (1–4) and length of liability period (5 years–lifetime) required to prohibit firearm possession and purchase.

Conclusions. Variation in state laws on DUI results in differences in determining who is federally prohibited from possessing and purchasing firearms. Future research should explore whether these federal prohibitions arising from DUI convictions are enforced and whether an association exists between stricter DUI policies and reduction in firearm crimes, injuries, and deaths.

Previous studies indicate that there is an association between alcohol misuse and increased risk of firearm injuries and deaths.^1–7 Wintemute et al. found that firearm owners in California with driving under the influence (DUI) convictions had a 4- to 4.5-fold increased risk of a subsequent violent or firearm-related arrest over a median 8-year follow-up period compared with firearm owners without previous criminal convictions.² Similar results were found in an update of the previous study.³ In these studies, even among individuals who had non-DUI criminal histories, a DUI conviction was associated with increased likelihood to commit firearm-related violent crime. Another study found an association between conviction of DUI and increased risk to be arrested for intimate partner violence.⁴ Alcohol misuse has been associated with intimate partner violence,^5,6 interpersonal assault, and firearm-related deaths.⁷ Individuals who misuse alcohol are at higher risk of dying by firearm suicide.⁷ As a result of all of these factors, some researchers have proposed restrictions that reduce access to firearms by individuals who misuse alcohol as a potential avenue to reduce firearm suicides, injuries, and homicides.^1,4,8

Pennsylvania, Maryland, and the District of Columbia specifically outlaw firearm possession and acquisition based on DUI convictions. Maryland makes the possession of firearms by a “habitual drunkard” illegal, where “habitual drunkard” is defined as someone who has been found guilty of 3 DUI offenses, 1 of which was in the past year.⁹ Pennsylvania forbids possession and other actions by individuals who have been convicted of DUI 3 times in a 5-year period.¹⁰ In the District of Columbia, no individuals will be issued a handgun registration certificate if they have been convicted of 2 DUI offenses in the past 5 years.¹¹ Indiana formerly forbade transferring firearms to individuals who had had 2 or more alcohol-related convictions, 1 of which occurred in the preceding 3 years, but this restriction was repealed in 2014.¹² Many other states have statutes forbidding alcohol users from purchasing or possessing firearms that use vague terminology like “drunkards,” “chronic alcoholics,” or “habitual alcohol use.”^1,13 These states do not define the use of these terms with any objective criteria, and commentators have suggested that these laws are not effectively enforceable as a result.^1,8 Federal law does not restrict individuals from purchasing or possessing firearms on the basis of alcohol-related convictions or intoxication, nor for other indicators of chronic or hazardous alcohol use.¹

Laws exist at the state and federal level that are not specific to DUI but nevertheless can apply to individuals based on DUI convictions. US federal law 18 USC §922(g)(1), established by the Gun Control Act of 1968, forbids firearm possession and purchase by individuals convicted in any US jurisdiction of “a crime punishable by imprisonment for a term exceeding one year”; this category is defined by 18 USC §921(a)(20) to exclude any state offense defined as a misdemeanor that is punishable by a term of imprisonment of 2 years or less. As such, if an individual is convicted of either a misdemeanor punishable by longer than 2 years imprisonment or a felony, federal law prohibits the individual from purchasing or possessing a firearm. Individuals under indictment for a qualifying offense are prohibited from firearm purchase, but not from possession. Because what constitutes an applicable crime is determined “in accordance with the law of the jurisdiction in which the proceedings were held,”¹⁴ it is subject to differences in how states choose to classify and punish DUI offenses. Researchers have found substantial differences in the strength of impaired driving policy among states.¹⁵ Those differences in impaired driving policy could be reflected in substantial differences in who becomes prohibited as a result of DUI convictions.

A comprehensive ascertainment of how the federal prohibition on firearm possession and purchase comes into effect on individuals convicted of DUI is lacking in the public health literature. In this article, we review the current landscape of state DUI laws regarding how they activate federal firearm prohibitions on possession and purchase, and we demonstrate how such firearm restrictions are related to the interplay between state and federal laws. This information will be of use to researchers assessing the effect of DUI-related firearm possession and purchase prohibitions on firearm-related injuries, deaths, and violence. State policymakers may benefit by understanding how state DUI laws, in the context of specific federal statutes, result in firearm prohibitions. In general, individuals may benefit by better understanding what factors lead to a federal prohibition from firearm possession and purchase in their states.

METHODS

We characterized current state DUI laws through primary research using the Thomson Reuters Westlaw database, an online legal database frequently used for legislative research. We conducted our legislative research from April 1, 2020, to May 1, 2020, for the laws in effect at that time in the 50 states and the District of Columbia. We considered District of Columbia laws along with state laws because of their inclusion in past studies on DUI-related firearm restrictions.^1,13 For our search, the primary variable of interest was the number of DUI offenses of which an individual must be convicted to activate federal possession and purchase prohibitions.¹⁶ State DUI laws usually provide for increasingly severe penalties for repeat convictions based on the number of prior convictions. In addition, some states also provide a set interval of time, such as 5 years, 10 years, or lifetime, for which prior DUI convictions will count toward a more severe charge and sentence length for a current conviction. For the purposes of this article, this time period is referred to as the liability period. At the expiration of the liability period, prior convictions will no longer apply toward the classification of the current crime or its sentencing.

We determined the number of DUI convictions required to qualify for the firearm possession and purchase prohibition under 18 USC §922(g)(1) by examining the charging classification and penalty for each ordinal number of convictions. For each state and the District of Columbia, we began by checking if first DUIs were either classified as a felony or carried a maximum imprisonment penalty of greater than 2 years, thus activating the federal prohibition on firearm possession and purchase. If first DUIs did not satisfy either condition, we checked the classification and penalty for second DUIs. This was repeated with further convictions until we either found a qualifying DUI conviction or found that no amount of DUI convictions would qualify for activation of the federal prohibition on firearm possession and purchase. If there was a qualifying DUI conviction, we then determined the liability period connected to it.

Both the number of required DUI offenses and the existence and length of the liability period are relevant to determination of who is prohibited from firearm possession and purchase under the federal statute. A lower number of DUI convictions required to qualify for 18 USC §922(g)(1) means that greater proportions of individuals convicted of DUI become prohibited from possession and purchase. A longer liability period allows more of an individual’s prior DUI convictions to count toward sentencing. In other words, a longer liability period increases the chances that an individual will reach the threshold number of previous offenses needed for federal prohibition of firearm possession and purchase.

We searched for penalties for a “basic” DUI crime with a tested blood alcohol concentration (BAC) equal to or greater than the state’s minimum threshold to incur a “per se” DUI offense (guilty of DUI based on the BAC),⁸ for a licensed, noncommercial driver aged 21 years or older. We disregarded any enhancing factors, such as the presence of a child in the vehicle, property damage, injury, or death, because of their complex effects on sentencing and classification. Excluding enhancements allowed us to provide a baseline measure that applies to all individuals that are convicted of the threshold number of DUIs within the liability period.

RESULTS

Only California, the District of Columbia, New Jersey, and New York do not provide statutory language for DUI sentences that qualify for a possession and purchase prohibition under federal law. The remaining 47 states have DUI laws that include language classifying some number of DUI conviction(s) as a felony or include a maximum sentence of greater than 2 years imprisonment for a threshold number of repeated DUI offenses without enhancements (Table 1). Thus, these 47 states have DUI statutory language that would activate the federal prohibition of firearm possession or purchase. However, substantial variation exists among these 47 states with respect to the number of DUI offenses that would prohibit an individual from purchasing a firearm under federal law, ranging from 1 offense to 4 offenses, as well as the liability period for consideration of these offenses. These variations are described hereafter and summarized in the table.

TABLE 1—

Number of DUI Offenses With Specified Time Period Resulting in Activation of 18 US Code §922 Prohibiting Firearm Purchase, by State and Current Statute: 2020

State	No. of DUI Offenses	Liability Period, Years	Impaired Driving Statute
Massachusetts	1	Lifetime	Mass Gen Laws ch 90, §24(1)(a)(1) (2018)
Connecticut	2	10	Conn Gen Stat §14-227a (2016)
Indiana	2	7	Ind Code §9-30-5–1 (2018)
New York	2	10	NY Veh & Traf §1192 (2009); NY Veh & Traf §1193 (2014)
Oklahoma	2	10	Okla Stat tit 47, §11-902 (2018)
Alaska	3	10	Alaska Stat §28.35.030 (2019)
Arizona	3	7	Ariz Rev Stat §28-1381 (2019)
Delaware	3	Lifetime	Del Code Ann tit 21, §4177 (2018)
Florida	3	10	Fla Stat §316.193 (2019)
Hawaii	3	10	Haw Rev Stat §291E-61 (2019)
Idaho	3	10	Idaho Code Ann §18-8001 (2018)
Illinois	3	Lifetime	625 Ill Comp Stat 5/11-501 (2019)
Iowa	3	12	Iowa Code §321J.2 (2019)
Louisiana	3	10	La Stat Ann §14:98-14:98.4 (2018)
Maine	3	10	Me Stat tit 29, §2411 (2017)
Maryland	3	Lifetime	Md Code Ann Transp §21-902 (2019)
Michigan	3	Lifetime	Mich Comp Laws §257.625 (2018)
Mississippi	3	5	Miss Code Ann §63-11-30 (2017)
Missouri	3	Lifetime	Mo Rev Stat §577.010 (2017)
Nevada	3	7	Nev Rev Stat §484C.400 (2019); Nev Rev Stat §484C.410 (2015)
Rhode Island	3	5	6 RI Gen Laws §31-27-2 (2019)
South Carolina	3	10	SC Code Ann §56-5-2930 (2009)
South Dakota	3	10	SD Codified Laws §32-23-4 (2008)
Texas	3	Lifetime	Tex Penal Code Ann §49.04 (2011); Tex Penal Code Ann §49.09 (2019)
Utah	3	10	Utah Code Ann §41-6A-502; §41-6A-503 (2018)
Vermont	3	20	Vt Stat Ann tit 23, §1201; §1210 (2019)
Virginia	3	10	Va Code Ann §18.2-270 (2014)
West Virginia	3	10	W Va Code §17C-5-2 (2014); W Va Code §17C-5A-2 (2015)
Kansasa	3; 4	10; lifetime	Kan Stat Ann §8-1567 (2018)
Alabama	4	10	Ala Code §32-5A-191 (2020)
Arkansas	4	5	Ark Code Ann §5-65-111 (2017)
Colorado	4	Lifetime	Colo Rev Stat §42-4-1301 (2016)
Georgia	4	10	Ga Code Ann §40-6-391 (2016)
Kentucky	4	10	Ky Rev Stat Ann §189A.010 (2019)
Minnesota	4	10	Minn Stat §169A.20 (2018); Minn Stat §169A.24 (2020)
Montana	4	Lifetime	Mont Code Ann §61-8-714 (2019); Mont Code Ann §61-8-731 (2017)
Nebraska	4	15	Neb Rev Stat §60-6197.03 (2020)
New Hampshire	4	10	NH Rev Stat Ann §265-A:18 (2020)
New Mexico	4	Lifetime	NM Stat Ann §66-8-102 (2016); NM Stat Ann §31-18-17 (2003)
North Carolina	4	10	NC Gen Stat §20-138.1; §20-138.5 (2006)
North Dakota	4	15	ND Cent Code §39-08-01 (2019)
Oregon	4	10	Or Rev Stat §813.010 (2017); Or Rev Stat §813.011 (2011)
Pennsylvania	4	10	75 Pa Cons Stat §3802 (2006); 75 Pa Cons Stat §3803 (2018); 30 Pa Cons Stat §923 (2012)
Tennessee	4	10	Tenn Code Ann §55-10-402 (2019)
Washington	4	10	Wash Rev Code §46.61.502 (2017)
Wisconsin	4	Lifetime	Wis Stat §346.63 (2015); Wis Stat §345.65 (2020)
Wyoming	4	10	Wyo Stat Ann §31-5-233 (2019)
Ohiob	4; 6	10; 20	Ohio Rev Code Ann §4511.19 (2017)
California	NA	NA	Cal Veh Code §23152 (2017); Cal Veh Code §23550 (2011)
District of Columbia	NA	NA	DC Code §50-2206.11; §50-2206.13 (2019)
New Jersey	NA	NA	NJ Rev Stat §39:4-50 (2019)

Note. DUI = driving under the influence of alcohol; NA = not applicable.

^aKansas: A third offense within a 10-year period or a fourth offense in a lifetime are sufficient to activate 18 USC §922.

^bOhio: A fourth offense within a 10-year period or a sixth offense in a 20-y period are sufficient to activate 18 USC §922.

Massachusetts is the only state in which a first unenhanced DUI conviction would result in a federal prohibition of firearm possession and purchase. In 4 other states (Connecticut, Indiana, New York, and Oklahoma), a second unenhanced DUI offense within a set liability period would qualify for the federal possession and purchase prohibition. In 23 states, a third repeat unenhanced DUI offense within a liability period qualifies for the federal possession and purchase prohibition. In 17 other states, a fourth DUI conviction within a liability period will qualify for the federal possession and purchase prohibition (Table 1). In 44 states, these DUI offenses qualified for the federal statute because they were classified as felonies. In South Carolina, Massachusetts, and Maine, misdemeanor DUI offenses qualified by carrying a maximum penalty of greater than 2 years imprisonment.

States varied in the length of their liability period for repeated DUI offenses. Twelve states had no maximum liability period; the remaining states had liability periods ranging from 5 to 20 years. In 2 states, the period varied depending on the number of repeat offenses committed. Kansas provides a felony classification for a third DUI conviction within a 10-year period; however, a fourth DUI conviction is always classified as a felony, regardless of when the prior convictions occurred. Ohio provides a felony classification for a fourth or fifth DUI conviction within a 10-year period, but a sixth conviction extends the liability period to 20 years.

In our review, we found that some states impose “habitual impaired driving” penalties upon certain numbers of repeat convictions. For example, in Hawaii, a third DUI conviction in 10 years makes an individual guilty of “habitually operating a vehicle under the influence of an intoxicant,” which is a felony. We counted such offenses, which result necessarily from multiple DUI convictions, if they qualified for 18 USC §922(g)(1).

DISCUSSION

These results add to the literature on the nexus of alcohol and firearms by characterizing the number of DUI offenses and relevant period that activate the federal prohibition on possessing or purchasing firearms. Previous reports noted that only Pennsylvania, Maryland, the District of Columbia, and formerly Indiana had laws that were specifically designed to outlaw firearm possession or purchase based on DUI convictions.¹ Nevertheless, individuals convicted of DUI in nearly all states can be prohibited from firearm possession and purchase under federal law if the state law results in a DUI conviction as a felony or misdemeanor punishable by greater than 2 years of imprisonment. The interplay of federal and state laws, combined with the differences in DUI penalty severity and classification among states, creates a complex legal landscape. Investigators assessing firearm laws and their potential impact on firearm ownership and firearm injuries and deaths should take both state and federal laws into account.

There is significant variation among the states and the District of Columbia in how DUI offenses activate federal firearm possession and purchase restrictions. California, District of Columbia, and New Jersey do not have any statutory language on DUI convictions that would result in the application of the federal statute prohibiting firearm possession and purchase, whereas Massachusetts, alone, dictates that a single DUI conviction can result in federal restrictions on possession or purchase of firearms. Future research should explore whether an association exists between firearm purchase and possession prohibitions on individuals convicted of DUI and reduction in firearm-related crimes, injuries, and deaths.

Limitations

We have attempted to summarize a nuanced legal landscape, and complexities exist in the execution of justice that are difficult to capture in a summary study. One limitation is that we did not summarize how states punish enhancements to DUI offenses. Enhancements are special circumstances that affect crime classification and sentencing and can change how many DUI convictions are needed to activate the federal statute. Because our findings display results for DUIs without enhancements, our findings can serve as a baseline, but are not exhaustive of all situations. For example, the US Court of Appeals for the Third Circuit case Holloway v Sessions involved the application of the federal purchase prohibition in Pennsylvania to an individual following a second DUI conviction, which involved a BAC of 0.192.¹⁷ Pennsylvania is a state where activation of 18 USC §922(g)(1) cannot occur after a second DUI offense alone (without enhancements). However, with an elevated BAC, extended sentences are sufficient to activate the federal prohibition. This illustrates how enhancing circumstances can result in prohibitions after fewer offenses than our findings display. Had the offender not had a highly elevated BAC, his second DUI would likely not have resulted in disarmament under Pennsylvania and federal law. More research is needed to summarize the effect of DUI enhancements on the activation of federal and state firearm prohibitions.

Another limitation of this study is that it did not examine how state-level prohibitions on firearm possession and purchase interact with state DUI laws. State-level prohibitions could be especially relevant to prohibiting individuals from firearm possession and purchase if they are enforced more effectively than federal laws. Another possibility is that state laws could set more restrictive thresholds for activation than federal law, resulting in individuals not affected by federal law to become prohibited from firearm purchase or possession at the state level. Future research is needed to synthesize state firearm laws with the DUI laws in the same states.

Public Health Implications

From our findings, federal law prohibits individuals from possessing or purchasing firearms based on DUI convictions in 47 states. In these states, firearm policy is coupled to DUI policy by federal law: if DUI penalization and classification are changed, the people prohibited from firearm possession and purchase change as well. If state policymakers wish to ensure stability in their firearm policy, they may choose to enact laws specifically basing firearm possession and purchase prohibitions on DUI convictions.

Many states currently have laws prohibiting individuals who misuse alcohol from firearm possession, but laws in most of these states are unenforceable because they lack objective criteria.^1,8 Our findings indicate that firearm access prohibitions based on DUI convictions already operate in nearly all 50 states. Given the near ubiquity of repeated DUI-related mechanisms for firearms prohibitions across states, interested policymakers may choose to emphasize enforcement of these laws over additional prohibitions to avoid the political challenges associated with new laws restricting firearms. Also, if policymakers wish to adjust their DUI-based firearm possession and purchase prohibitions, they can use this article as a reference to compare their state with the others.

Researchers should use this article as a resource for future investigations on the effects of policies that prohibit firearm possession or purchase based on DUI convictions. Previous studies have supported that individuals convicted of DUI have increased risk of committing firearm crime.^2,3 However, research is lacking on the effects of DUI-based firearm access restrictions on an ecological level. Our findings show that future researchers must consider state DUI laws and their interaction with federal firearm policy.