N.J. Appellate Court Overturns Denial of Handgun Purchase Permit

Starting at In the Matter of … Andriy YaremiyJudges Richard Hoffman and Mary Gibbons Whipple ruled yesterday in favor of the petition.

The applicant applied for a FPIC, Handgun Purchase Permit and a Handgun Delivery Permit. The Chief of Wood-Ridge Police Department rejected the application. In his letter to appellant notifying him of the denial, the Chief stated that investigation revealed appellant had been arrested for driving while intoxicated (DWI) in 2015…. [At a later court hearing, t]he Chief testified that in 2015, appellant was arrested in New York on a “2C violation,” and in 2008, appellant received a summons … for consumption of alcohol by a passenger while the vehicle is being operated, in violation of N.J.S.A. 39:4-51a(a). The appellant was assessed a $256 fine along with costs. He was also not given a suspension of his driver’s license and was not sentenced.

On the 2015 offense, defendant pled guilty to a reduced charge of driving while ability impaired (DWAI), in violation of New York Vehicle and Traffic Law (VTL) § 1192.1, and was sentenced to a one-year conditional discharge, no jail time, a ninety-day suspension of driving privileges, and a $500 fine.

The Chief stated that the chief denied the request due to appellants’ history of alcoholism, false application and it not being “in the best interest” for the safety, health and welfare of our citizens. He said that he never allowed a DWI-convict to apply for a firearm purchase.

Detective David Marchitelli said that he thought appellant’s past involvement with alcohol or motor vehicles was indicative of a poor judgment and disregard for law. Marchitelli also was concerned about appellant’s incoherence when asked questions regarding the DWI arrest of 2015. [The court later concluded that Marchitelli was in error about this, and the appellant’s statements were accurate. -EV]According to him, the applicant’s application was denied because it posed a danger to the public health and safety as well as welfare.

There was no evidence by the State that appellant was an infrequent drunkard, suffered mental illness, and had ever been admitted to a hospital for treatment. He also confirmed that appellant had never been the subject of any domestic violence or drunk-and disorderly complaints. He also acknowledged that other than the DWI arrest, he did not know appellant to be a habitual drunkard and was not aware if appellant had any psychological problems….

In regard to the 2008 driving while drunk in a car charge, the appellant stated that he did not seek counsel’s advice and pled guilty. He claimed he was a passenger in a van driven by a friend and was unaware there was an open container in the vehicle….

The [trial]The court found that the State had satisfied its obligation to show “[b]The evidence is overwhelming. [that]The issuance [a]Appeallant’s FPIC or Handgun Purchase Certificate would present a danger to public safety, health and welfare. The court found appellant did not have sufficient insight to understand the consequences of his previous involvement in alcohol-related motor vehicle accidents and ruled that he had no benefit from the rehabilitation program he was ordered to participate in after his conviction. The court acknowledged that the right to bear arms was guaranteed by the [United States] Constitution,” the court found good cause to deny appellant’s application….

Balancing … competing interests—the right to bear arms and reasonable limitations on gun ownership to protect the public—N.J.S.A. 2C:58-3(c) provides:

A permit to buy a handgun, or to obtain a purchaser’s identification card for firearms, is granted to anyone who has good character, good reputation, or meets all other requirements.

It was made to stop “statutorily ineligible” people from having firearms. This applies to the case where “anyone who was convicted of any crime, a disorderly persons offense involving domestic violence” is prohibited from owning firearms.[,]” N.J.S.A. 2C.58-3(c),(1): “any drug dependent person” or “anyone who is confined to a hospital for a mental disorder.” [or]”Any person who is an habitual drunkard”[,]” N.J.S.A. 2C.58-3 (c)(2). Any person who knowingly falsifies information on an application for a firearms purchaser identification or handgun purchase permit.[,]” N.J.S.A. 2C.58(c.3); “anyone who the issuance is made.” [of the permit]It would be against the public’s safety, health and welfare[,]” N.J.S.A. 2C:58(c)(5). Any one of these disabilities is legally sufficient to deny the issuance of a permit to own or possess a firearm….

State v. Freysinger (N.J. Super. A defendant was ordered to surrender his guns and found to have been a “habitual drinker” due to his two DWI convictions. He also had two refusal to submit chemical testing convictions. In contrast, appellant had one DWI conviction in 2015, and a consumption of alcohol in a motor vehicle conviction in 2008, twelve years before he applied for the FPIC and handgun purchase permit….

A preponderance was needed to establish that the State denied appellant a FPIC/handgun purchase permit.[.]”  Our careful review of the record convinces us that the State did not satisfy that burden.

12 years prior to the filing of this application, alcohol was consumed in motor vehicle accidents as a passenger. Passenger alcohol consumption is not a danger to safety, health or welfare. Five years ago, the DWI was committed. No repeat offenders have occurred. Both were not related to domestic violence or weapons. Both offenses were motor vehicle related. The appellant is 28 years of age. A crime or disorderly person offense has not been charged against him, and he isn’t even accused of domestic violence. Nor is there any evidence that defendant currently abuses alcohol….

Reversed and remanded for the Law Division to enter an order granting a FPIC and handgun purchase permit to appellant….