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This is a discussion on Wife denied CHP in Amelia County Va. within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; First of all, I am not asking for legal advice here, just opinions, and perhaps where to go to find pro carry attorneys. My wife ...
First of all, I am not asking for legal advice here, just opinions, and perhaps where to go to find pro carry attorneys.
My wife has had some legal problems in the past. She had one felony arrest as a juvenile, where the charges were dismissed, and two misdemeanor charges, the most recent in 1994. But the 1994 was a misdemeanor drug paraphernalia conviction. The judge denied her permit based on that charge. She is planning on filing a request with the court for an "Ore Tenus" hearing. Does anyone think she has a chance of getting the denial reversed, and should an attorney be retained for the hearing? Lastly, there used to be a link on one of the forums to which I belong that linked to a listing of pro 2nd Amendment lawyers by state, but now I can not locate it anywhere. The Va CHP requirements state that anyone with 2 misdemeanor convictions within the last 5 years can e denied a carry permit. However, the judge seems to be given some discretion when one of the misdemeanors is a Class I misdemeanor.
This is from the Virginia State Police website.If Your Application is Denied
Any order denying issuance of the permit shall state the basis for the denial of the permit and the applicant's right to and the requirements for perfecting an appeal of such order.
Upon denial of the application, the clerk shall provide the person with notice, in writing, of his right to an ore tenus hearing. Upon request of the applicant made within 21 days, the court shall place the matter on the docket for an ore tenus hearing. The applicant may be represented by counsel, but counsel shall not be appointed, and the rules of evidence shall apply. The final order of the court shall include the court's findings of fact and conclusions of law.
Any person denied a permit to carry a concealed handgun may present a petition for review to the Court of Appeals. The petition for review shall be filed within 60-days of the expiration of the time for requesting an ore tenus hearing pursuant to subsection I of § 18.2-308, or if an ore tenus hearing is requested, within sixty days of the entry of the final order of the circuit court following the hearing. The petition shall be accompanied by a copy of the original papers filed in the circuit court, including a copy of the order of the circuit court denying the permit. Subject to the provisions of § 17.1-410 B, the decision of the Court of Appeals or judge shall be final. Notwithstanding any other provision of law, if the decision to deny the permit is reversed upon appeal, taxable costs incurred by the person shall be paid by the Commonwealth.
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I work in the courts, but CP apps are handled by our sheriff. I can say that the judges I have worked with whcih are many, the drug misdemeanor would be the hangup. For your best chance I would hire an attorney they have legal research resources you do not and may make a better argument for possible reversal of the decision.
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"However, the judge seems to be given some discretion when one of the misdemeanors is a Class I misdemeanor. " Is this "discretion" stated in the state laws governing the issue of permits?
FL CWFLs are issued by state through the Dept. of Agriculture and Consumer Services, no judges, no sheriffs involved. A "record of drug or alcohol abuse" is possible grounds for ineligiblity, as is a "felony conviction" (conviction, mind you, not arrest) or misdemeanor crime of violence in the last 3 years.
You'll need a lawyer to determine if the judge refused the permit based on law or prejudice.
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What does the denial say exactly? That info would help.
If the denial was based upon that specific instance, it sounds like it may have been a knee-jerk reaction on the judge's part to deny. Based upon the fact that it is a somewhat older charge, I would say there is a chance of reversal. You would probably best be served to obtain the records from that conviction with completion details. The 2 within 5 years should not be relevant due to the length of time passed since 1994.
It certainly cannot hurt to have a lawyer for the appeal meeting.
Lawyer up and let him do what he makes his living doing. That was 16 years ago, and it was "paraphernalia" not posession of drugs, selling drugs, or under the influence of drugs. Having paraphernalia can be anything from a t-shirt with a pot leaf on it to an aligator clip or a pack of rolling papers...all of which are sold legally. I think a good lawyer can do his research on the details of her 16 year old issue and work an angle on it, but it comes down to the judge. Appeal it to the extent you can and let the lawyer do his thing. It could go either way. At this point, if you do nothing you've lost so it couldn't hurt. Meet your deadlines.
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In VA the Judge MUST issue the CHP if all conditions of the Code are met UNLESS the Sheriff or Chief of Police states that he has personal knowledge that the applicant will be dangerous with a permit. Read the Code. http://leg1.state.va.us/000/cod/18.2-308.HTM The Ore Tenus hearing is the last step in the appeal process. Lawyer up if you're serious about getting that permit. Or get one from Florida, it's good in VA. Good luck. A friend of mine got denied in Isle of Wight a couple years ago because the Sheriff wrote a letter but had no facts to support his position. In Ore Tenus the Judge gave the Sheriff a tongue lashing for going beyond what the law allowed, and granted the permit.
Some highlights from the Code:7. An individual who has been convicted of two or more misdemeanors within the five-year period immediately preceding the application, if one of the misdemeanors was a Class 1 misdemeanor, but the judge shall have the discretion to deny a permit for two or more misdemeanors that are not Class 1. Traffic infractions and misdemeanors set forth in Title 46.2 shall not be considered for purposes of this disqualification.
13. An individual who the court finds, by a preponderance of the evidence, based on specific acts by the applicant, is likely to use a weapon unlawfully or negligently to endanger others. The sheriff, chief of police, or attorney for the Commonwealth may submit to the court a sworn written statement indicating that, in the opinion of such sheriff, chief of police, or attorney for the Commonwealth, based upon a disqualifying conviction or upon the specific acts set forth in the statement, the applicant is likely to use a weapon unlawfully or negligently to endanger others. The statement of the sheriff, chief of police, or the attorney for the Commonwealth shall be based upon personal knowledge of such individual or of a deputy sheriff, police officer, or assistant attorney for the Commonwealth of the specific acts, or upon a written statement made under oath before a notary public of a competent person having personal knowledge of the specific acts.
L. Any person denied a permit to carry a concealed handgun under the provisions of this section may present a petition for review to the Court of Appeals. The petition for review shall be filed within 60 days of the expiration of the time for requesting an ore tenus hearing pursuant to subsection I, or if an ore tenus hearing is requested, within 60 days of the entry of the final order of the circuit court following the hearing. The petition shall be accompanied by a copy of the original papers filed in the circuit court, including a copy of the order of the circuit court denying the permit. Subject to the provisions of subsection B of § 17.1-410, the decision of the Court of Appeals or judge shall be final. Notwithstanding any other provision of law, if the decision to deny the permit is reversed upon appeal, taxable costs incurred by the person shall be paid by the Commonwealth.
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FWIW I had two misdemeanor drug convictions in 1991,been clean and sober since.I had to show TX DPS what the outcome of the cases were.Once they had all the information they then issued my CHL,One thing that may help the appeal is character witnesses and any treatment she may have gone thru and/or still attending
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Might be better to get her record expunged, then you'll never have to worry about it again.
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Virginia only expunges charges which are Dismissed or Nolle Prosse (not prosecuted by motion of the Commonwealth's Attorney).