MA GUN LAWYER

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When an OUI (called DUI or DWI in some other states) conviction implicates your gun rights: what the Erler case shows

In the October 10, 2025 the Massachusetts Appeals Court held in a shocking decision, Commonwealth v. Erler, that criminal defense counsel in Massachusetts do not necessarily have to warn a client about the consequences of a plea of guilty in such a case relative to the right to keep and bear arms.  

What happened in the case

Here’s a quick breakdown of the facts:

• In the early hours of January 6, 2022, the defendant was observed on Route 1 in Massachusetts swerving between lanes and sending text messages while driving. A state trooper stopped him, smelled alcohol, noted bloodshot glassy eyes, etc.
• The defendant was charged, tried, and convicted of OUI (operating a motor vehicle while under the influence of intoxicating liquor) under G. L. c. 90, § 24(1)(a)(1).
• After conviction, the defendant moved for a new trial on the ground that his lawyer should have advised him about options (such as “continuance without a finding”) and the firearms‐possession consequences of a DUI conviction. His lawyer admitted he knew client had a license to carry firearms but did not discuss the repercussions of conviction vs. alternative dispositions on the right to maintain that license.
• The Appeals Court rejected the claim of ineffective assistance of counsel (IAC) holding that collateral consequences of a plea or conviction on firearms possession does not automatically amount to ineffective assistance.
• The court also found the evidence sufficient to uphold the OUI conviction, and held that the trial judge acted within his discretion in admitting certain evidence (e.g., the name of the establishment where the defendant had been drinking) and in denying the motion for a new trial.

Glaring Errors in this Decision?

In a feeble attempt to distinguish US Supreme Court precedent (Padilla) that says that non-citizens must be warned beforehand by their lawyers of all the collateral consequences of their guilty plea, the Erler court said:

“We recognize the importance of the constitutional right to bear arms, but all constitutional rights are lost [in contrast] when a noncitizen is removed from the country.”

This is a distinction without a difference. Just as this may be true, all 2^nd Amendment rights are lost permanently when an American citizen is convicted in Massachusetts of a disqualifying conviction.   Unlike most other states, Massachusetts has no procedural mechanism by which gun rights might be restored after x number of years after the conviction, moreover.

Perhaps not to be outdone in the shocking nature of this decision, the Erler court also stated:

“One could have a spirited debate whether the right to bear arms is more or less important than the right to vote, the right to property, or the right to pursue a livelihood, see Minon, 102 Mass. App. Ct. at 248, but the point remains that the undeniable importance of the right to keep and bear arms does not remove it from the ranks of collateral consequences that a criminal defendant need not be informed of to render a valid guilty plea.  Accordingly, seeing no reason to depart from our holding in Indelicato, we affirm that a defendant need not be affirmatively informed by counsel of the consequences of a conviction on the right to possess a firearm prior to deciding whether to enter into a plea agreement.”

This being America, sure, the people themselves are always free to debate which rights they might, or might not, favor over the other.   However, any such “debate” has all of no proper place whatsoever in the constitutional analysis that is to be applied by American courts, the Massachusetts Appeals Court included.   After all, the United States Supreme Court ended any such “debate” in the arena of the court system once and for all when it held in Bruen:           

“The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees”. 

The court in Erler even went on to downplay the permanence of permanent disarmament:

“After five years of the most recent punitive measure stemming from the disqualifying conviction, a defendant may petition the firearm licensing review board for the restoration of the ability to obtain a firearms license.  G. L. c. 140, § 130B (d).[2]  Accord 18 U.S.C. § 921(a)(20), second par.”

The problem here is that unless the person also were to also get relief through the federal procedure the court mentions here- not a very likely scenario at all– he or she would be committing a federal felony of being a “felon in possession” of a firearm, even if they were to be licensed to possess as a result of an appeal to the so called “Massachusetts Firearms License Review Board.”    This is not to mention that fact that a great many disqualifying offenses do not come within the power of the FLRB to reverse the consequence.

This is some truly shocking stuff, for lack of a better way of characterizing it.  

The court mentions voting rights, but Massachusetts has viable procedures through which a convicted felon may retore his or her voting rights.   Moreover, this is nothing more than a straw man premise because no one’s voting rights are taken away in Massachusetts due to a first offense OUI conviction, in stark contrast to their 2^nd Amendment rights.

Why it matters for gun-owners and Second Amendment defenders

1. “Collateral” consequences are real. Even though the case was about OUI, not a firearms-related, or a violent, offense, the background shows that convictions can strip or suspend firearms rights under Massachusetts law. For instance, gun licensing authorities may suspend or deny licenses after certain convictions, including OUI, depending on statute/regulations.

2. Defense counsel warning is not required (under current MA law) for firearms collateral consequences. This is a key, and a truly mortifying, takeaway: Despite the 2022 landmark US Supreme Court decision, NY Rifle v. Bruen, the Massachusetts Appeals Court held that failing to advise about those firearms license/possession consequences doesn’t necessarily mean your lawyer was constitutionally deficient. That means gun-owners face the risk of losing rights without prior warning.

3. Implications for strategic decisions. Gun-owners should be aware that:

• Pleas and convictions matter. Even if it isn’t a firearms or violent crime, it might very well affect your license to carry or own a firearm. DO NOT FALL FOR THE ASSUMPTION THAT MOST OF THE 2ND AMENDMENT COMMUNITY SEEMS TO HOLD THAT ONLY “FELONIES” AND/OR VIOLENT CRIMES ARE DISQUALIFIERS.
• If you are charged with a crime, you must ask your attorney: “If I plead guilty (or go to trial), what happens to my firearms license?” — even if Massachusetts law doesn’t require your lawyer to advise you.
• Consider alternative dispositions (where applicable) that might avoid a conviction record. The case mentions “continuance without a finding” as one such alternative. In fact, by law, this alternative is presumptively available to everyone charged with OUI first offense.   You are going to have to think long and hard about taking any first offense OUI to trial, especially in light of this truly disgraceful decision.  Very arguably, any person charged with OUI in Massachusetts who is a gun owner- or wishes to exercise the right anytime in the future – may be well advised to resolve an OUI first offense case by way of the 24D program and a continuance without a finding, no matter how weak the evidence of the alleged OUI may be.   Always consult wit your attorney on this.

What this doesn’t do — concerns & next-steps

• Massachusetts can and does treat OUI as serious for gun license review. The warning is: don’t assume “it’s only a DUI” keeps everything else unaffected.
• For advocates: this case may prompt consideration of whether statutory reforms or legal challenges should address the gap: should defense counsel be required to advise about firearms consequences? Shouldn’t statutes limit firearms-licensing suspensions to more serious (and violent/assaultive) offences?

A call to action for pro-2^nd-Amendment Advocates

If you stand for the right to keep and bear arms — especially in Massachusetts — here are a few action items:

• Educate gun-owners: Make sure people with carrying/ownership licenses understand that non-firearms, and non-violent offenses (like DUI) may jeopardize those rights.
• Push for reform: Advocate for legislative changes so that collateral firearms suspensions are more narrowly tailored, or, at a minimum, for clear mandated rights warnings from lawyers.   Just because this court got the constitutional issue here wrong, it does not mean that a statutory right to be warned cannot be created.
• Legal readiness: Support legal clinics or programs that help gun-owners navigate pleas, understand their rights, and plan for possible collateral consequences.
• Monitor case law: The next case that tests IAC for firearms consequences could shift the landscape. Keep eyes on MA Appeals Court and Supreme Judicial Court decisions.   This one might end up getting taken by the Massachusetts Supreme Judicial Court. Erler might end up being taken up by the US Supreme Court, if need be, thereafter. Keep those fingers crossed.