A misdemeanor DUI conviction does not, by itself, take away your right to own or possess a firearm under California or federal law. A felony DUI conviction does, under both, and that ban does not expire on its own.

Why the felony versus misdemeanor line controls

California’s firearm ban for people with a criminal record is built around felony convictions. Penal Code section 29800(a)(1) makes it a felony for anyone with a felony conviction under California, federal, or another state’s law to own, buy, receive, possess, or control a firearm. Federal law is similar: 18 U.S.C. section 922(g)(1) bars anyone convicted of a crime punishable by more than one year in prison from possessing or receiving a firearm or ammunition.

Neither ban reaches a misdemeanor DUI. Penal Code section 29805 names the misdemeanors that carry their own state firearm ban (10 years for most), such as battery, assault, criminal threats, and stalking. Vehicle Code sections 23152 (DUI) and 23153 (DUI causing injury) are not among them. Federally, 18 U.S.C. section 921(a)(20)(B) excludes any state offense classified as a misdemeanor and punishable by two years or less, and Penal Code section 19.2 caps county jail for a single misdemeanor conviction at one year.

So if every DUI-related conviction on your record is a misdemeanor, including a wet reckless, those convictions do not trigger either felony ban. If one of them could have been sentenced as a felony but ended as a misdemeanor, see the section on reductions below, because the federal answer for that kind of conviction is less direct.

How a DUI becomes a felony

These statutes can make a DUI a felony (for how such cases are defended, see felony DUI defense):

  • A fourth DUI within 10 years. Vehicle Code section 23550 applies when a DUI occurs within 10 years of three or more prior DUI-related convictions and allows either a felony term under Penal Code section 1170(h) or 180 days to one year in county jail. See fourth DUI felony escalation for how that filing decision gets made.
  • DUI causing injury. For a first violation of Vehicle Code section 23153, Vehicle Code section 23554 allows either state prison or 90 days to one year in county jail. With two or more prior DUI-related convictions within 10 years, Vehicle Code section 23566 calls for state prison.
  • A DUI after a prior felony DUI. Under Vehicle Code section 23550.5, a new DUI within 10 years of a prior DUI punished as a felony can be punished by state prison or up to one year in county jail.

Apart from section 23566, these allow either a felony or a misdemeanor sentence, so the result is not automatic. The state and federal bans turn on a felony conviction, not an arrest. While a felony charge is pending by indictment or information, though, 18 U.S.C. section 922(n) separately makes it unlawful to ship, transport, or receive a firearm or ammunition (section 921(a)(14) counts an information as an indictment).

If the felony is later reduced

When a crime can be punished either as a felony or as a misdemeanor, Penal Code section 17(b) lists the ways it becomes “a misdemeanor for all purposes.” Two matter most after a conviction: a judgment imposing a punishment other than state prison or a Penal Code 1170(h) jail term, and a court’s declaration that the offense is a misdemeanor, made when it grants probation or on a later application. Whether a later reduction is possible depends on how the case was sentenced.

Under 18 U.S.C. section 921(a)(20), what counts as a conviction is decided by the law of the jurisdiction where the proceedings were held, so a 17(b) reduction matters for the federal ban as well as the state one. How it applies to your record is a question to confirm with a lawyer before you rely on it. Getting it wrong is risky: under California law, a mistaken belief about your own status as a convicted felon is a mistake of law and not a defense to the state charge, as CALCRIM No. 2510, the jury instruction for possession by a prohibited person, notes (citing People v. Snyder (1982) 32 Cal.3d 590). Do not buy, receive, or possess a firearm while any disqualifying conviction stands.

Dismissals and pardons follow separate rules. Section 921(a)(20) disregards a conviction that was expunged, set aside, or pardoned, or after which civil rights were restored, unless the relief itself expressly withholds firearm rights. California’s dismissal statute contains that kind of express limit: Penal Code section 1203.4(a)(2) keeps the state firearm prohibition in place after a dismissal, and CALCRIM No. 2510 says the same. So a 1203.4 dismissal does not restore state gun rights, and you should not assume it lifts the federal ban either.

What this means for your situation

  • With a felony DUI conviction, both bans apply unless the conviction is later reduced or otherwise relieved in a way that restores firearm rights. A 17(b) reduction can do that; a 1203.4 dismissal does not restore state firearm rights.
  • If your current case could be filed as a felony, how it is charged and sentenced decides whether this consequence attaches at all.
  • Other prohibitions can apply for reasons unrelated to a DUI, such as certain domestic violence restraining orders and misdemeanor domestic violence convictions (18 U.S.C. section 922(g)(8) and (g)(9)).

If you are unsure how your record is classified, or you are facing a DUI that could be charged as a felony, Law Offices of David S. Chesley can review your record and your options. Call (800) 755-5174 to discuss your case.