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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27414
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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i have a third degree domestic violence conviction from 2009

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i have a third degree domestic violence conviction from 2009 in arkansas for which i paid a $500 fine. initial charges were felonies which were bogus and were all dropped except for the domestic charge. i did not do jail time. no other record or charges on me. i now live in arizona and would like to purchase a shot gun. my application from the fbi background check came back as "delayed". will i be denied due to this prior misdemeanor 3 rd degree for domestic violence? thank you
Hi, Jacustomer,

I do not have good news for you. A domestic violence conviction will cost you your federal gun rights. It's supposed to be a lifetime bar, but if you can get your offense expunged, set aside or pardoned by the governor, Federal law says they will reinstate you, so long as your state doesn't specifically deny you firearms rights when they grant you the expungement, set aside, or the pardon.

Unfortunately, it does not look as if you can get your matter expunged. Arizona at best will set it aside. (See link) Further, Arizona will not pardon a misdemeanor. The pardon process is available only to felons.

You can try the set aside, and see if that will get you somewhere, but because of the Violence against Women's Act and the Lautenberg Amendment, it may not be good enough.

There's an appeal possibility if it is denied, if your domestic violence case does not conform to the definition of a DV matter as defined in the 18 USC 1921. To lose your Federal gun rights for a DV case :

the term "misdemeanor crime of domestic violence" means an offense that -
(i) is a misdemeanor under Federal, State, or Tribal (!3) law;
(ii) has, as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly situated to
a spouse, parent, or guardian of the victim.

(B)(i) A person shall not be considered to have been convicted of
such an offense for purposes of this chapter, unless -
(I) the person was represented by counsel in the case, or
knowingly and intelligently waived the right to counsel in the
case; and
(II) in the case of a prosecution for an offense described in
this paragraph for which a person was entitled to a jury trial in
the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right
to have the case tried by a jury, by guilty plea or otherwise.

(ii) A person shall not be considered to have been convicted of
such an offense for purposes of this chapter if the conviction has
been expunged or set aside, or is an offense for which the person
has been pardoned or has had civil rights restored (if the law of
the applicable jurisdiction provides for the loss of civil rights
under such an offense) unless the pardon, expungement, or
restoration of civil rights expressly provides that the person may
not ship, transport, possess, or receive firearms.

Zoey_ JD and 4 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
I had the misdemeanor expunged in arkansas in august 2010. Would that be enough?
Hi Allen,

According to the Feds, an expungement, pardon or set-aside will be enough UNLESS when you got it expunged the document you received specifically states that your firearms rights were not restored.

Customer: replied 4 years ago.
Thank you. I suppose my expungement document should have that info, correct?
Hi Allen,

Yes, that's what I was referring to. If it is silent on the issue of gun rights, that should be okay. But if it checked a box that says no firearms restored or has some explicit condition that you don't get your gun rights back, then the federal government will not lift their bar.
Customer: replied 4 years ago.
The actual offense was domestic battery 3 rd degree. The form says that the petition to seal was approved on aug 12 2010 but no mention of firearms rights or anything.. Sealing is expungement?It says" under authority of A.C.A, 16-90-906, which provides for sealing of a defendants record, that the petition to seal the record of the offense should be granted. All the felony charges were nollo prossed in exchange for agreeing to the 3 rd degree domestic battery chargeThe defendant was sentenced under provisions of A.C,A. 16-93-301 et seq which provides for sealing of defendants recordDefendant satisfactorily complied with orders of this courtDefendant has been rehabilitatedThis is all from Arkansas but Im now in Arizona

No. In most states, sealing is not expungement. Arizona does not expunge convictions. They set them aside. If you got a set aside (a dismissal) and then it was sealed afterwards, that should be good enough for the Federal government. If you got the matter sealed but it was not first set aside, that is not going to be good enough, according to the words of the Federal statute I gave you.
Customer: replied 4 years ago.
Ok. So even though this happened in arkansas and it was sealed there, id have to get it set aside in arizona?
Sorry. This has been a hectic day.

I saw the Arizona in the state/county section of your question. I skimmed over Arkansas. You need Arkansas law because the only state that can restore your rights is the one that took it away in the first place.

The Federal law that I mentioned is the same for all states. Your conviction has to be set aside, expunged or pardoned.

I've just taken a look at Arkansas law and in Arkansas your offense would be eligible for expungement (See link) However, the Arkansas statute is clear that unless you were sentenced under the First Time Offender Act, the expungment would NOT restore your gun rights. You would need a pardon from the governor to do that. [A.C.A. §5-73-101(2)].

You may have to talk to your lawyer to find out if you came under that act. If so, you would have your expungement and your firearms right restored by the state.

If not, here's what you need to do to apply for an Arkansas pardon. (see link) You would need no lawyer. Pardons are not easy to get. However, traditionally, Arkansas governors have used their pardon powers more liberally than most.