Yes, actually, it does. I don't agree with it or think it should be applied retroactively, but that is in fact how it is enforced.WildBill wrote:Since this happened 15-17 years ago, I don't think that the domestic violence provision would apply ex-post facto.
It does not need to be labeled "domestic violence" to be a conviction that counts a "misdemeanor crime of domestic violence" (MCDV) for federal firearms purposes.papajohn1964 wrote:Yep I got my CHL because it wasnt a DV.Teamless wrote:Which is not the same as domestic violence, which is probably what yours was, by the sounds of it anyway.papajohn1964 wrote:the judge dropped it to a simple assault charge
If someone is curious, they should review ATF: Misdemeanor Crime of Domestic Violence
Also read the FBI's brochure on Misdemeanor Crimes of Domestic Violence
The key phrase under federal law 18 U.S.C. §921(a)(33) is:
(A) Except as provided in subparagraph (C),[2] the term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State, or Tribal [3] law; and
(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.
As far as the use or attempted use of physical force is concerned, a conviction under TPC 22.01 depends upon the specification. Sec 22.01(a)(1) would count as eligible for MCDV if the other parts of the federal statute are met. Sec 22.01(a)(2) would not count, since MCDV threats require threatened use of a deadly weapon, which would be an aggravated assault in Texas law.
When he says, "the judge dropped it down to a simple assault charge", I am assuming he means the Class C misdemeanor for 22.01(a)(2). That would not qualify as MCDV eligible.
However, if someone is convicted of Sec 22.01(a)(1), which is a Class A misdemeanor, then the second part of the question becomes whether the girlfriend is a "qualifying person". Review again: "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.".Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
If someone has ever lived with a girlfriend or had a child with her, then an assault under Sec 22.01(a)(1) could be a disqualifying crime. The only remaining questions then would be if the person was represented by counsel or knowingly and intelligently waived counsel, and if they were tried by a jury or knowingly and intelligently waived a jury trial.