Pennsylvania Firearm Owners Association
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  1. #1
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    Default Calling for some help with PICS Challenge denial

    I've gone through this website many times over the months to prepare for my LTCF and just got to explore it again looking for the answer to this.

    I was released from ARD on June 5 (since June 5 2008) and expunged shortly thereafter, so it was no surprise when PICS denied me for the LTCF. I sent in the forms and got a call today from a lady there who told me that when you sign up for ARD, you are admitting yourself to be a drug user and are therefore a "prohibited person" for one year following the END of ARD. Therefore, my challenge was denied.

    Um, I have never heard of this, either through the ARD ordeal or through researching this forum/state law/the Internet at large. Is this familiar to anyone else? She told me she would send the specific statutes in the follow-up letter. And before anyone chimes in, I can't afford a lawyer, nor should I need one for this

  2. #2
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    Default Re: Calling for some help with PICS Challenge denial

    Quote Originally Posted by psyche View Post

    I was released from ARD on June 5 (since June 5 2008) and expunged shortly thereafter, so it was no surprise when PICS denied me for the LTCF. I sent in the forms and got a call today from a lady there who told me that when you sign up for ARD, you are admitting yourself to be a drug user and are therefore a "prohibited person" for one year following the END of ARD. Therefore, my challenge was denied.
    "if my math is right, and it always is" (/tony stark quote) aren't you past the year of ARD?

  3. #3
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    Default Re: Calling for some help with PICS Challenge denial

    This is a JUST a general discussion on the law and of the question posed. It should not be construed as legal advice or taken as such. This is simply one persons opinion.

    Was your case put back on the court calendar?
    Did you enter a guilty plea or take the case to trial?
    All fines Paid?
    Did you even get a hot urine or a +.08 BAC?


    I can go on for some time but only you really know what is really going on here..

  4. #4
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    Default Re: Calling for some help with PICS Challenge denial

    No offense, but just because you can't find it, doesn't mean it's not there.
    Wait for the letter and you'll have somewhere to start your appeal.
    Did you have an attorney for the ARD and expungement?

  5. #5
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    Default Re: Calling for some help with PICS Challenge denial

    Did you start ARD on June 5 2008 and released on June 5 2009? If you have to wait another year to not be a "prohibited person" that would be June 5 2010. Maybe I'm reading this wrong.

  6. #6
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    Default Re: Calling for some help with PICS Challenge denial

    Quote Originally Posted by sk8r101all View Post
    Did you start ARD on June 5 2008 and released on June 5 2009? If you have to wait another year to not be a "prohibited person" that would be June 5 2010. Maybe I'm reading this wrong.
    That is correct! That is exactly what the lady over the phone told me and I made sure a few times. I didn't have a single hiccup during the ARD period, either, and I even sent in my judge-signed expungement papers with the challenge.

    The fact is...where does it say I'm prohibited another year because I agreed to the ARD program? I completed my requirements to the T and never had so much as a late payment.

    I thank everyone for their thoughts already, and I'll wait to see what happens in this letter. I wanted to see if anything happened to pop into anyone's mind in the meantime...

  7. #7
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    Default Re: Calling for some help with PICS Challenge denial

    Quote Originally Posted by UnrealStunner View Post
    This is a JUST a general discussion on the law and of the question posed. It should not be construed as legal advice or taken as such. This is simply one persons opinion.

    Was your case put back on the court calendar?
    Did you enter a guilty plea or take the case to trial?
    All fines Paid?
    Did you even get a hot urine or a +.08 BAC?


    I can go on for some time but only you really know what is really going on here..
    My case is gone from the Unified Judicial System and the Probation Office physically destroyed my files. I never entered a guilty plea or went to trial. Everything was paid early. Definitely no hot urine.

    I feel like I'm getting shafted here, which is pretty typical of the government's response towards non-violent, victimless crimes.

  8. #8
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    Default Re: Calling for some help with PICS Challenge denial

    A friend asked me to post this response:


    Let's assume Psyche's offense was something like a small amount of MJ or paraphernalia charge from Pennsyvania because I'm not sure how this could ever apply for something like a DUI or public drunkeness or underage drinking, for example.

    I'm not certain how ARD constitutes the admission, so I will have to research that further.

    However, I have tried to reach the ATF, NICS, and PICS to have the question of the 'unlawful user of controlled substance' question answered.

    PICS tells me that even if you were convicted of the small amount or paraphernalia charge, your conviction would not qualify as a prohibitor for 18 Pa.C.S. 6105(c)(2), "A person who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years." Now if my guess of your original charge is correct, and they do come out and say that is the prohibitor, obviously my over-the-phone contact may be in error. There is no indication here, though, that the prohibitor expires after one year.

    Something I have never seen discussed (or just can't find via Search) on PAFOA is the definition of 'unlawful user' in 18 U.S.C. 922(g)(3): "is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));" In fact, it is not defined by the legislature. It does have a definition in the Code of Federal Regulations, however. (I assume ATF or TTB or NICS performed handiwork to get it there, and it is damning, but not insurrmountable.) 27 C.F.R. 478.11 <http://edocket.access.gpo.gov/cfr_2009/aprqtr/27cfr478.11.htm> defines "Unlawful user of or addicted to any controlled substance" as "A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure."

    What struck me as odd was the mention that 'an inference of current use may be drawn'. By whom may it be drawn? I have never heard of courts adjudicating persons as unlawful users or placing those conditions in orders for sentencing or any such thing. If the court is not making determination, who the hell has the right to do so?

    So I called the ATF and they never got back to me, and I realized I could call the NICS and maybe get the answers I needed. It's not easy discussing the law with people who wish to know nothing about it, but it was relayed to me that, at least through NICS, the person performing the 'instant background check' gets to make a DECISION based on the information before them at their terminal as to whether a person is prohibited, and therefore whether the person is an unlawful user of a controlled substance. That is one of the few prohibitors, if not the only one, where your conditions has not been set by a court of law. In fact, I might call it a clear violation of the separation of powers, something the legislator must find and the court must adjudicate. I asked what gave these persons the authority to make a decision, and wasn't given any, so I asked if there was a training manual I could review. I was told that I couldn't have it, or even be given the name of it, but it may be called "NICS Examiner Manual", and would likely be unable to FOIA it. FOIA time!!!

    I also asked what definition they used to determine what an unlawful user was. They said the 478.11 definition (also the one PICS told me they use.) I asked the folks at NICS how they could use the 478.11 definition when the circuit courts are not in tandem on the definition of the unlawful user and have actually found varying amounts of allowed 'inferences' to be made, at least for charging the criminal violation of 922(g). They responded they just use that definition anyway.

    Back to PICS, they told me that while 6105(c)(2) was not offended, 922(g)(3) was, and that a conviction for the assumed drug offense was a 1 year ban (from the time of conviction, though, not at the end of the sentence.) (PICS has a manual too that needs RTK'd.)

    Too bad these guys are all wrong. The issue has already been decided in the 3rd Circuit for the purposes of the criminal violation of 922(g), where it was found that smoking marijuana once a few hours before committing armed robbery did not prove the requirement that drug use be either a PATTERN of use and contemporaneous with the ACTUAL use of firearms. "Congress chose to criminalize firearm possession by any person "who is an unlawful user[.]" Id. (emphasis added). The use of the present tense was not idle. Quite simply, Congress intended the statute to cover unlawful drug use at or about the time of the possession of the firearm, with that drug use not remote in time or an isolated occurrence. [...] Those of our sister courts of appeals that have considered 18 U.S.C. § 922(g)(3) have concluded, as do we, that one must be an unlawful user at or about the time he or she possessed the firearm and that to be an unlawful user, one needed to have engaged in regular use over a period of time proximate to or contemporaneous with the possession of the firearm. [...] There was no evidence that Augustin had ever used drugs prior to the single use on June 28, or that he ever used drugs again. All the evidence disclosed was that Augustin used drugs on June 28 and possessed a firearm on June 29, roughly six hours later. That evidence was insufficient to support his conviction under 18 U.S.C. § 922(g)(3)." <http://openjurist.org/376/f3d/135> United States v. Augustin, 376 F.3d 135 (2004).

    If there is allowed to be a disparity between the crime of 922(g) and the inability of purchase, I do not know what that reason could be, because the only enabling legislation that exists to bar someone from purchasing the arm is 922(g) (or perhaps 922(d), but having the same definition) itself.

    Although any PA Controlled Substance Act conviction is a prohibitor for an LTCF, ARD is not a conviction. I wrote the above post because I forgot your PICS check was for an LTCF and not a purchase. The only worry I now have is 6109(e)(1)(vi) "An individual who is addicted to or is an unlawful user of marijuana or a stimulant, depressant or narcotic drug." because I am not sure where the definition for unlawful user is (or is not) in PENNSYLVANIA law. I searched the body of P.S. and Pa.C.S. statutes and found 'unlawful user' in no other statute but 18 Pa.C.S. 6109. I also searched the Pa. Codes at pacode.com and found nothing. A 1 year ban sure sounds like they're using the federal regulatory definition.

    "I would rather be exposed to the inconveniences attending too much liberty
    than to those attending too small a degree of it."~Thomas Jefferson, 1791
    Hobson fundraiser Remember SFN Read before you Open Carry

  9. #9
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    Default Re: Calling for some help with PICS Challenge denial

    Quote Originally Posted by headcase View Post

    Although any PA Controlled Substance Act conviction is a prohibitor for an LTCF, ARD is not a conviction. I wrote the above post because I forgot your PICS check was for an LTCF and not a purchase. The only worry I now have is 6109(e)(1)(vi) "An individual who is addicted to or is an unlawful user of marijuana or a stimulant, depressant or narcotic drug." because I am not sure where the definition for unlawful user is (or is not) in PENNSYLVANIA law. I searched the body of P.S. and Pa.C.S. statutes and found 'unlawful user' in no other statute but 18 Pa.C.S. 6109. I also searched the Pa. Codes at pacode.com and found nothing. A 1 year ban sure sounds like they're using the federal regulatory definition.
    Phew, that was exhaustive but great! It's too darn hard to find all of the stranger gun statues in PA law. But yes, you nailed it on the head for the charges. But either way, there does seem to be a bit of a problem because of the non-conviction status of ARD, not to mention there are not special ARD branches for DUI or drug offenders.

    Either way, had I entered a plea, I don't think my charge added up to the two year mark for maximum jail time. The only prohibiting factor was the nature of ARD...and that is since over with/expunged (although that expungement is stuck in the backlogged process line)

    I haven't received the 5 day challenge reply yet from the PSP with the statues this lady purported to cite. I probably should have gotten her name, too, but I was a bit pissed at the time of the call naturally

    Anyway, it would seem to me that I would be an unlawful user if I was currently in treatment or had been otherwise convicted. It's strange there hasn't been much discussion about this, I see a lot of simple assaults and DUIs pop up before marijuana around here.

    Major rep for you, thank you

  10. #10
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    Default Re: Calling for some help with PICS Challenge denial

    I just posted something that someone who can not post here wanted to pass along, but I'm sure he would say, "You're welcome."

    I can't wait until he can start posting here again, this forum is a lesser place without him....

    "I would rather be exposed to the inconveniences attending too much liberty
    than to those attending too small a degree of it."~Thomas Jefferson, 1791
    Hobson fundraiser Remember SFN Read before you Open Carry

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