When an OUI Conviction Costs a Firearm License: The Appeals Court Reaffirms That Loss of Gun Rights Is a “Collateral Consequence”
Introduction
In an October 2025 decision, the Massachusetts Appeals Court revisited the boundaries of effective legal advice in OUI cases—especially when those cases affect the right to own or carry a firearm.
In Commonwealth v. Albert J. Erler, No. 24-P-983 (Essex County, Oct. 10, 2025), the court rejected a claim that trial counsel was constitutionally ineffective for failing to warn a client that an OUI conviction would automatically suspend his ability to possess firearms11-070-25.
The court reaffirmed a nearly 30-year-old precedent, Commonwealth v. Indelicato (1996), holding that loss of firearm rights is a collateral consequence of conviction, not one that defense lawyers are constitutionally required to warn about before trial or plea.
While the case confirmed long-standing Massachusetts law, it also underscored the complexity of modern OUI practice—where criminal, civil, and regulatory penalties intersect in ways that can affect far more than a driver’s license.
Case Background
The case arose from a January 2022 traffic stop on Route 1 in Lynn, when a State Trooper observed Albert Erler’s vehicle “swerving back and forth between lanes” and suspected the driver was texting while driving11-070-25.
When the trooper approached the car, he smelled an overwhelming odor of alcohol and noted that the defendant’s eyes were bloodshot and glassy. Erler admitted that he had been “out with friends getting food and drinks” and later said he was coming from the Golden Banana, a well-known Lynn gentlemen’s club, where he had consumed four to five vodka tonics11-070-25.
He was arrested for operating under the influence of intoxicating liquor (OUI), under G. L. c. 90, § 24(1)(a)(1). A jury convicted him after trial in the Lynn District Court.
Months later, Erler filed a motion for a new trial, arguing that his lawyer had failed to advise him that an OUI conviction would cause him to lose his license to carry firearms (LTC) and that a continuance without a finding (CWOF) might have preserved those rights. He also alleged other failures, including the decision not to introduce booking photos or video at trial.
The trial judge had retired, and a different judge denied the motion for a new trial. Erler appealed both the conviction and the denial.
The Legal Question
The central issue was whether Erler’s trial attorney was constitutionally ineffective under the Saferian standard for failing to explain that an OUI conviction would trigger an automatic firearms prohibition under G. L. c. 140, § 121F and 18 U.S.C. § 922(g).
Erler argued that he would have accepted a CWOF—a disposition that avoids a formal conviction—had he known it would preserve his gun rights.
The Commonwealth countered that existing Massachusetts precedent (Indelicato) had already held that firearm licensing consequences are collateral, not direct. Because counsel’s duty extends only to direct consequences of a plea or conviction, failure to discuss firearm eligibility could not amount to ineffective assistance.
The Appeals Court’s Decision
Justice Ditkoff, writing for a unanimous panel, affirmed the conviction and the denial of the motion for new trial.
The court held three key points:
Loss of firearm rights remains a collateral consequence of conviction, even after Padilla v. Kentucky (2010) and the U.S. Supreme Court’s recognition of an individual Second Amendment right in Heller (2008) and McDonald (2010).
Counsel’s failure to advise about firearm licensing consequences does not constitute ineffective assistance.
The trial judge acted within his discretion in admitting evidence that the defendant had been drinking at the Golden Banana, and the evidence was sufficient to prove impairment beyond a reasonable doubt11-070-25.
Why Firearm Consequences Are Still “Collateral”
The Appeals Court traced the issue back to its 1996 decision in Indelicato, where it held that an attorney’s incorrect statement about gun licensing laws did not amount to constitutional ineffectiveness because the right to possess firearms is “entirely collateral to the charges pending for plea or trial.”
In Erler, the court reaffirmed that reasoning despite several decades of legal change:
Federal law—18 U.S.C. §§ 921(a)(20)(B) and 922(g)—prohibits anyone convicted of a misdemeanor punishable by more than two years’ imprisonment (such as OUI) from possessing firearms.
Massachusetts law likewise disqualifies such individuals from holding an FID card or LTC for at least five years after the termination of probation or sentence11-070-25.
A CWOF does not count as a conviction and therefore avoids that disqualification.
Nevertheless, the Court held that an attorney’s failure to explain those distinctions is not constitutionally deficient, because firearm licensing is a regulatory issue outside the criminal case itself.
As the panel put it, deportation is unique under Padilla because it is “closely connected to the criminal process.” By contrast, the loss of firearm rights—even though significant—is a civil collateral effect that “flows secondarily from conviction or incarceration.”11-070-25
The Second Amendment Argument
Erler’s appellate counsel argued that the rise of Second Amendment jurisprudence since Heller and McDonald transformed the right to bear arms from a discretionary privilege into a core constitutional right, thereby making its loss a direct consequence of conviction.
The Appeals Court disagreed. Justice Ditkoff wrote that while the right to bear arms is fundamental, so are other rights—such as voting or pursuing one’s livelihood—that may also be restricted after conviction. Their constitutional importance does not change their legal status as collateral consequences.
The Court concluded:
“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.”11-070-25
This reaffirmation maintains the long-standing line between what defense counsel must explain (direct consequences like sentencing) and what remains outside that duty (collateral effects like licensing or civil disqualifications).
Other Ineffective Assistance Claims
Erler also alleged several other forms of ineffective representation:
Failure to introduce booking video or photos. The Appeals Court rejected this claim because the defendant never provided the materials to the motion judge. Without seeing them, the court could not determine whether they would have supported the defense.
Voir dire about “a couple of drinks.” Defense counsel’s tactic—asking potential jurors whether they could acquit someone who had “a couple, two, three, four drinks”—was deemed reasonable. The court characterized it as a sound strategy to identify jurors open to the defense theory that mere drinking does not equal impairment11-070-25.
Failure to introduce evidence of a tongue piercing. The defendant argued that this could explain slurred speech, but the court held that counsel had already elicited testimony that the trooper didn’t know the defendant’s normal speech pattern. Any further evidence would have been cumulative and immaterial.
Overall, the court found no “manifestly unreasonable” conduct or prejudice meeting the Saferian test.
Admitting the Name of the Bar: “Golden Banana” Evidence
Before trial, defense counsel filed a motion in limine to exclude the name of the establishment where the defendant drank, arguing that “Golden Banana” could unfairly prejudice the jury.
The trial judge denied the motion, finding the name relevant to establish credibility about where the defendant had been and how much he drank. During jury selection, the judge took care to minimize prejudice by asking prospective jurors whether they had any “moral objections to gentlemen’s clubs.”11-070-25
The Appeals Court approved that approach, noting that voir dire questioning is an effective tool for addressing potential bias. The decision cited similar rulings where trial judges allowed references to bars and nightclubs because such details helped establish context for intoxication evidence.
Sufficiency of the Evidence
Finally, the court held that the evidence of impairment was sufficient to sustain the conviction.
Viewed in the light most favorable to the Commonwealth, the record showed:
Erratic driving between lanes;
A strong odor of alcohol;
Bloodshot, glassy eyes;
Slurred speech; and
Admission of consuming multiple vodka tonics11-070-25.
Taken together, these facts allowed a rational jury to find beyond a reasonable doubt that Erler’s ability to operate safely was impaired.
What This Means for Defendants
This decision confirms that in Massachusetts, an OUI conviction carries serious collateral effects—including automatic disqualification from firearm licensing—but failure to receive specific advice about those effects does not make counsel constitutionally ineffective.
Still, the ruling offers practical lessons:
A CWOF can protect firearm rights. Because it is not a conviction, it avoids the five-year licensing disqualification under G. L. c. 140.
Clients must ask early about collateral impacts. Even if not constitutionally required, competent counsel should discuss how a plea or conviction may affect firearm licensing, immigration status, or professional credentials.
Judges have discretion to manage potentially prejudicial evidence. Contextual facts—such as where a defendant was drinking—are generally admissible so long as voir dire screens for bias.
Sufficiency challenges face a high bar. Observable signs of impairment, combined with admissions, almost always support an OUI conviction.
Implications for Defense Attorneys
For practitioners, Erler reinforces several points of professional importance:
Document every advisement. Even though firearm rights remain a collateral issue, many clients consider them central. Best practice is to discuss them and record the conversation in the file.
Explain CWOFs carefully. A continuance without a finding is not always appropriate, but where firearm ownership or professional licensing matters, it can make a meaningful difference.
Prepare for collateral-consequence litigation. As the law evolves, appellate courts will continue to revisit the boundaries of “direct” and “collateral” effects, especially in light of changing federal regulations and constitutional rights.
Key Takeaways
The Massachusetts Appeals Court reaffirmed Indelicato (1996): loss of firearm rights after conviction is a collateral, not a direct, consequence.
Defense lawyers are not constitutionally required to warn clients that an OUI conviction will suspend their firearm license.
The ruling aligns Massachusetts with existing precedent under Padilla, Sylvester, and Marinho.
Evidence of the defendant’s drinking location (“Golden Banana”) was properly admitted and not unduly prejudicial.
The OUI conviction was supported by sufficient evidence of impairment.
Conclusion
Commonwealth v. Albert J. Erler is a reminder that even routine OUI cases can carry far-reaching collateral consequences—particularly for defendants who lawfully possess firearms. While the Appeals Court declined to expand the scope of constitutionally required advice, it implicitly encouraged defense lawyers to go further than the bare minimum and discuss these issues with every client.
For anyone facing an OUI charge in Massachusetts, the case underscores two points:
The importance of early, thorough legal advice that considers all possible effects of conviction; and
The value of exploring plea options like a CWOF when collateral interests such as firearm licensing are at stake.
About Benzaken, Sheehan & Wood, LLP
Benzaken, Sheehan & Wood, LLP is a Brockton-based criminal defense firm serving clients across Massachusetts in OUI/DUI, firearms, and post-conviction matters. Our attorneys have handled cases in every Superior and District Court in the Commonwealth and have argued before both the Appeals Court and the Supreme Judicial Court.
If you are charged with OUI, or if a past conviction is affecting your firearm license or professional credentials, contact our office for a confidential consultation. We can help you understand your options, protect your rights, and plan for your future.