Recently there’s been some chatter on the list-serve about hypothetical clients (HC) who are arrested for DUI and are either personally armed or have a firearm somewhere in the vehicle. The firearm ultimately gets seized and several different questions have arisen.

First, let’s deal with the general issue of having a firearm in the vehicle, but not concealed on your person. Loaded rifles and loaded shot guns in a vehicle are illegal. RCW 77.15.460(1). And loaded means having a round/shell either in the chamber or in a magazine/clip that is attached to the firearm. RCW 77.15.460(1)(b) & (5). However, unloaded handguns and unloaded long guns may be legally transported in a vehicle. During transport they don’t have to be hidden from view or locked in a case but, for obvious reasons, keeping them out of sight is advisable. RCW 9.41.050 (2)(a). If you exit your vehicle and leave your unloaded handgun within, you must lock the vehicle. RCW 9.41.050 (3)(a).

When can someone bring a loaded handgun into a vehicle?

Only when they have a valid Concealed Pistol License (CPL), and they’re not intoxicated. The loaded handgun must either be on the CPL holder’s person (whether concealed or not), or it must be hidden from view in the vehicle and the CPL holder must be in the vehicle too. If the CPL holder exits the vehicle and leaves the loaded handgun within, the vehicle must be locked and the loaded handgun hidden from view. RCW 9.41.050.

Assuming the driver who is otherwise legally transporting and/or concealing a firearm gets arrested for DUI, his firearm will be seized and inventoried just like everything else of value. The client’s question at this point is typically twofold: 1. Will I get my gun back?, and 2. Will I lose my CPL? Let’s look at these in the order presented.

Will I get my gun back?

RCW 9.41.098(1)(e) states that the superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be in the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW. Clearly this is talking about a conviction for DUI/Physical Control triggering a forfeiture of the weapon. But it’s the status of the firearm itself that determines whether the driver was in a place where a CPL was required. If the handgun was not loaded and not concealed on his person, then we know that a CPL was not required and, yes, he should get his gun back. RCW 9.41.050(2)(a). However, if the handgun was concealed on his person (whether loaded or not), then a CPL is required in that circumstance. RCW 9.41.050. And if the handgun is loaded and somewhere in the vehicle, then a CPL is required in that circumstance as well. RCW 9.41.050. But even if your client is convicted of DUI and was in a place where a CPL was required, forfeiture is discretionary (the courts “may” order forfeiture).

I recently saw an interesting forfeiture argument posted by a member that, on its face, seems tenable. As mentioned earlier, a conviction is the triggering mechanism for the forfeiture. Consider Section 15 of the Washington State Constitution: “CONVICTIONS, EFFECT OF. No conviction shall work corruption of blood, nor forfeiture of estate.” The argument is that RCW 9.41.098(e) is unconstitutional because a forfeiture cannot derive from the effects of a conviction. Furthermore, all other forfeiture proceedings require notice under a separate pleading or action to be constitutional and it’s possible the court may try and order a forfeiture upon conviction without your client getting proper notice.

If your client does receive a Notice of Seizure And Intended Forfeiture under RCW 9.41.098, be sure to file a Notice Of Claim And Request For Hearing within 45 days. Once you file that, you likely won’t hear anything more about the proceeding. I’ve found that prosecutors prefer to deal with the gun issue as part of the criminal case – which takes it out of the realm of a 9.41.098 forfeiture. Depending on what’s more important to your client and depending on the facts of the case, you may be able to negotiate a reduction in the DUI in exchange for his forfeiture of the firearm. To do that, you’ll want to prepare an Agreed Order of Forfeiture that identifies the firearm and does not mention that the forfeiture is pursuant to any RCW statute. I say Agreed Order because both parties are agreeing to the forfeiture.

Will I lose my CPL?

I think in most cases the answer will be no. RCW 9.41.075(1)(c) calls for revocation of a CPL when there has been a third violation of chapter 9.41 within five calendar years. You might need to check and see if your client has any of those. And RCW 9.41.075(1)(d) calls for revocation of a CPL when there is an order that the licensee forfeit a firearm under RCW 9.41.098(1)(d) – which involves the use of a firearm in the commission of a felony.

What to do if the HC wants the firearm back.

I recently had a DUI client whose loaded semi-auto was taken by the arresting officer. The next day my client called and told me what happened. I told him to go ask for his property back. He did and they gave it back to him.

If law enforcement states they need to do a background check prior to returning it, that’s a good indication your client will be getting the firearm back in about a week. They’re basically doing a mental health background check on your client (because of a case some years ago where a police department gave a fellow his gun back – a fellow who had mental health issues – and within hours the fellow killed someone).

If the department declines to return it because they’re keeping it as evidence, your client won’t be seeing it any time soon. Advise your client to put in a request that the firearm not be destroyed. WSP especially is good about keeping firearms that have such a request attached to them. While the case is still pending, it never hurts to have your client take a gun safety class and give you a copy of the certificate that you can use in negotiation and/or mitigation.

And finally, when resolving your DUI, ask the local public defenders and prosecutor if the judge typically adds time to plea deals in cases where the driver had a firearm. I know of at least one that routinely does.

Originally Published On The WACDL’s “DUI News” Newsletter July 08, 2013