In the last 6 months, I have been contacted and retained on several cases where my clients are facing prosecution for misconduct involving weapons. In the majority of these cases, the misconduct involves my client being prohibited to possess a gun because of their prior felony conviction, or worse, because they are currently on probation, and the court had not yet had restored their right to possess a weapon.
Misconduct with a weapon is set forth in Arizona Revised Statute 13-3102. There are multiple means to commit misconduct with a weapon. Some of the basic felonies are defacing a deadly weapon (removing the serial number), when contacted by police and subsequently lying about the possession of the weapon, carrying a knife other than a pocket knife either concealed or within his immediate control in a vehicle, possessing a deadly weapon on school grounds, and using a gun when committing a violent felony.
However, in the majority of my cases, my client is arrested for possessing a gun when his right to possess a gun has not been restored. In most cases, the ONLY defense is that they did not and could not have reasonably known the weapon was on their person, their residence or vehicle. The State only needs to prove that you knew or should have known the weapon was present.
When accused of being a prohibited possessor, the real issue is whether one is prohibited and whether one is in possession.
WHO IS PROHIBITED FROM POSSESSING A GUN?
The legislature has defined prohibited possessor under several circumstances. Generally, the more common types of prohibited possessors are noted below:
- Those previously found by court order to be a danger to themselves or others;
- Those convicted of a felony, adjudicated delinquent;
- Those currently on probation pursuant to a felony conviction or previously convicted of a DV crime;
- AS TO ALL the above, one remains prohibited until their rights are restored
DEFENSES TO BEING CHARGED WITH PROHIBITED POSSESSION
The majority of my cases arise from police contact and subsequent search. The police contact is normally a traffic stop, but is sometimes based on personal contact on the street. On other occasions, it may be the result of a probationary search.
A: CHALLENGE THE STOP/DETAINER
Your first line of defense is determining whether officers had grounds to initiate contact. For a traffic stop, officers must have a reasonable belief that you have committed a traffic violation. For a “street contact,” again, officers must have some legal grounds to initiate contact.
For either of these situations, your first defense is to not consent to a search. If ever detained, remember you are only required to identify yourself. I always recommend limiting the information provided to that on your driver’s license. Just give them your name, address and biographical information. Anything beyond that, politely indicates you refuse to answer or request an attorney.
B: CHALLENGE THE SEARCH
Officers are permitted to search a vehicle incident to an arrest, prior to it being towed, or with a warrant. But the usual search is solely based on my client’s giving their consent. DO NOT CONSENT TO ANY SEARCH OF YOURSELF, YOUR VEHICLE OR RESIDENCE.
Make them get a warrant. Make them describe their probable cause. Make the officers do their job. You do not need to make it easy for them.
If this is a probationary search, you do NOT have a right to refuse the search.
C: MAKE THE STATE PROVE POSSESSION
Possession may be actual or constructive. If the gun is actually on one’s person, that is actual possession. Most of the time, the gun is found in the car, in the closet, etc… anywhere except on the person. When the gun is not on the person, possession is considered constructive. Constructive possession requires the prosecutor prove that you had access to the weapon. They will show that you knew or should have known the gun was present. That is all done by circumstantial evidence and argument.
Where I noted above that you never consent to a search, similar advice applies here: NEVER ANSWER ANY QUESTIONS ABOUT THE GUN OR YOUR KNOWLEDGE ABOUT IT.
SENTENCING IS SUBSTANTIAL
Being a prohibited possessor is a felony. Prosecutors take any gun crime seriously. If this happens to be a first offense, then you would normally be probation eligible. But, if you have a prior conviction, prison is likely mandatory. Regardless of whether you are probation eligible or facing prison, understand that prosecutor’s are normally seeking substantial punishment.
Despite my comments above, I have had success defending these cases. Sometimes, I can obtain dismissals. Other times, the best result is a negotiated plea to a reduced offense or punishment. These cases are difficult, but defendable.
Your best defense, at a minimum, is to consult with an experienced attorney. When facing any investigation for a misdemeanor or felony, it is a serious matter. Contact Howard Snader. He is a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any felony or misdemeanor, please email him at [email protected] or visit
https://www.snaderlawgroup.com for your free case review.