The opinion of the court was delivered by: Johnny J. Butler, Judge
BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
Richard E. Perkoski (Perkoski) petitions this Court for review of the January 26, 2011 order of the Office of Attorney General Administrative Law Judge (ALJ) sustaining the denial by the Pennsylvania State Police (PSP) of his application to purchase a firearm. The sole issue before this Court is whether the PSP accurately deemed Perkoski‟s 2001 conviction for driving under the influence of alcohol (2001 DUI) a misdemeanor of the first degree, which precludes him from possessing a firearm. For the reasons that follow, we affirm the order of the ALJ.
It is undisputed that Perkoski was convicted of DUI offenses that occurred in 1988, 1990, 2001 and 2002. In 2009, Perkoski made application to purchase a firearm at Steel Valley Arms, which was denied when a Pennsylvania Instant Check System report indicated that he was not qualified to purchase a firearm due to a disqualifying conviction. On July 10, 2009, Perkoski submitted a Pennsylvania Instant Check System challenge to the PSP. By letter dated July 15, 2009, the PSP stated that his denial was based upon his disqualifying conviction for his 2001 DUI, pursuant to Section 922(g)(1) of the Federal Gun Control Act of 1968 (the Act).*fn1 By letter dated October 6, 2009, Perkoski filed an appeal to the Office of Attorney General, Pennsylvania Instant Check System Challenge Unit, claiming that because his 2001 DUI was a second-degree misdemeanor, rather than a first-degree misdemeanor, the PSP improperly denied his purchase application. A hearing was held before the ALJ on August 31, 2010, at which documentary evidence was admitted and legal argument was made by counsel for Perkoski and the PSP. On January 26, 2011, the ALJ issued an order denying Perkoski‟s request for relief. Perkoski filed an appeal from the ALJ‟s order with this Court.*fn2
Section 922(g) of the Act provides in relevant part:
It shall be unlawful for any person . . . (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to receive any firearm . . . which has been shipped or transported in interstate or foreign commerce.
Pursuant to Section 921(a)(20) of the Act, 18 U.S.C. § 921(a)(20), "[t]he term "crime punishable by imprisonment for a term exceeding one year‟ does not include . . . any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." In Pennsylvania, a crime classified as a first-degree misdemeanor carries a maximum penalty of five years of incarceration, while a second-degree misdemeanor carries a maximum two-year jail term. 18 Pa.C.S. § 106(b)( 6), (7). Accordingly, although a first-degree misdemeanor would preclude gun ownership under the Federal Gun Control Act, a second-degree misdemeanor would not.
Perkoski argues on appeal that the ALJ erred by sustaining the PSP‟s denial of his firearm application where it is clear that the conviction for his 2001 DUI was a misdemeanor of the second degree. Perkoski‟s position is that his 2001 DUI was deemed a first offense because his prior offenses did not occur within the previous seven years, that the sentence imposed reflects that it was considered his first offense and, therefore, the records incorrectly designate his 2001 DUI as a first-degree misdemeanor, so the PSP should consider it a second-degree misdemeanor for purposes of approving his firearms application. We disagree.
In Pennsylvania, all DUI offenses are classified as misdemeanors. Section 3731(e)(1) of the Vehicle Code (Section 3731(e)(1)), which was in effect at the time of Perkoski‟s sentencing for his 2001 DUI, provided:
Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree, except that a person convicted of a third or subsequent offense is guilty of a misdemeanor of the first degree, and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) Not less than 48 consecutive hours. . . . .
(iii) Not less than 90 days if the person has twice previously been convicted of . . . an offense under this section . . . ...