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Weapons Charges

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The Second Amendment protects your right to own a gun. Like many other amendments to the U.S. Constitution, however, that right is not absolute. Numerous regulations restrict who can own or possess a gun. There are also a number of criminal charges related to using a gun or firearm illegally.

Violating any of these regulations, rules or statutes can result in firearms or weapons charges in California. Effectively defending against these charges can be the difference between an acquittal and a costly conviction that carries significant fines and jail time.

Firearm Possession Charges

One of the most common kinds of weapons charges is for illegal possession of a firearm. Many people are legally prohibited from owning or carrying a weapon, typically because of a prior offense.

For example, anyone who has been convicted of a felony in California or any other state or even someone who just has an outstanding warrant for their arrest for a felony is prohibited from owning or possessing a firearm. Under California Penal Code 29800, also known as felon in possession of a firearm, a violation can strip you of your right to own a gun for decades.

Felons are not the only ones who can face firearms possession charges. Penal Code 29805 lists dozens of misdemeanor crimes that can also lead to 10-year revocations of your right to own a firearm. Many of these misdemeanor crimes are for violent offenses like assault, battery or domestic violence or for threatening crimes like stalking.

You can also face firearm possession charges for a variety of other violations, including:

Carrying a loaded gun in public (Penal Code 25850)

Carrying a concealed firearm when you do not have a permit (Penal Code 25400)

Carrying a gun in certain places like airports (Penal Code 171.5), school zones (Penal Code 626.9) or government buildings (Penal Code 171c)

Charges for Using a Firearm

In addition to restrictions on when you can carry or possess a weapon, there are laws that dictate when you can and cannot use a firearm. Many of these are crimes that carry serious penalties, including long periods of jail time.

For example, one of the statutes prohibiting use of a firearm is California Penal Code 26100. This law puts criminal sanctions on both the driver and the person who fires a gun in a drive-by shooting.

Other charges for using a firearm are essentially aggravating factors for other criminal charges. For example, California Penal Code 245, which makes it a crime to commit an assault with a firearm, carries significantly higher penalties for the underlying crime of simple assault.

What is a Weapons Charge and What are the Penalties Associated?

A weapons charge is a criminal offense that occurs when an individual uses or possesses a weapon in a manner that is illegal under federal, state, and local laws. The penalties for a weapons charge can vary depending on the type of weapon involved and the circumstances of the offense, but they range from simple fines to prison sentences. In some cases, a weapons charge may also result in the loss of the individual’s right to possess or carry a firearm. Weapons charges are typically felonies, which means that they can have a significant impact on an individual’s life.

Potential penalties for weapons charges can include:

  • Fines: Weapons charges can result in fines ranging from a few hundred to several thousand dollars, depending on the severity of the charges.
  • Probation: Probation is a sentence that requires an individual to adhere to certain conditions, such as meeting with a probation officer and refraining from criminal activity. Probation sentences can last for a few months or several years.
  • Jail time: Weapons charges can result in jail sentences ranging from a few days to several years. Sometimes, an individual may be eligible for parole after serving a portion of their sentence.
  • Loss of firearms rights: Individuals convicted of certain weapons offenses may be prohibited from possessing or carrying firearms.

If you face charges for a crime involving a weapon, speak with an experienced criminal defense attorney who can investigate the charges against you and help you navigate the criminal justice system.

Common Reasons for Inaccurate Weapons Charges

There are many reasons why someone may be mistakenly charged with a weapons offense:

  • Improper search and seizure: Police officers must have a warrant or probable cause to search an individual’s home or vehicle. If the police search an individual’s property without a warrant or probable cause, any evidence they find may be inadmissible in court. To prove that the police had probable cause, the prosecutor must show that there was a reasonable belief that the individual was involved in criminal activity. An attorney can challenge the police’s search and seizure of evidence if it was done without a warrant or probable cause.
  • Mistaken identity: Eyewitnesses can mistake one individual for another. This is especially true when the situation occurred in a crowded place or when the witness only saw the individual briefly. To prove that an individual is guilty beyond a reasonable doubt, the prosecutor must be able to provide evidence that shows that the individual was positively identified as the person who committed the crime. An experienced criminal defense attorney can challenge the prosecution’s evidence and point out inconsistencies in the eyewitness testimony.
  • False accusations: People sometimes make false accusations out of spite or revenge. In some cases, people may falsely accuse someone of a crime to cover up their own involvement. Your defense attorney can investigate the accuser’s motives and background to look for signs of false accusations.
  • Improper police conduct: Police officers are sometimes accused of misconduct, such as planting evidence or coercing a confession. Any evidence that is obtained through police misconduct may be inadmissible in court. An expert criminal defense lawyer can investigate the police officers’ conduct to look for signs of misconduct.
  • A break in the chain of custody: The chain of custody is the sequence of events that shows who had possession of evidence from the time it was collected until the time it was presented in court. If there is a break in the chain of custody, it raises the possibility that the evidence may have been tampered with or contaminated. An observant criminal defense attorney can scrutinize the chain of custody to look for any breaks that could cast doubt on the evidence.
  • Illegally obtained evidence: Evidence obtained through illegal means, such as unlawful wiretaps, may be inadmissible in court. An experienced criminal defense attorney can investigate the circumstances under which the evidence was obtained to determine if it was obtained legally.

Defenses to Firearm Charges in California

Just because you have been charged with possessing or using a firearm does not mean you will be convicted or that you must plead guilty. Raising effective legal defenses to the criminal firearms charges being levied against you is the only way to fight back, protect your rights and avoid the severe penalties that often come with a conviction.

The possible defenses to weapons charges depend on the facts of the case and the applicable laws. Some of the most common defenses include:

  • The weapon was not a firearm: To be convicted of a firearms offense, the government must prove that the weapon was actually a firearm. Sometimes, an officer may mistake a BB gun or pellet gun for a real firearm. This can lead to an individual being charged with a firearms offense even though the weapon was not actually a firearm. An attorney can show that the weapon was not a firearm.
  • The individual did not know the weapon was a firearm: In some cases, an individual may be charged with a firearms offense even though they did not know that the weapon was a firearm. For example, an individual may be charged with unlawful possession of a firearm if they inherit a firearm from a family member and are unaware that the firearm is illegal. An attorney can prove that the individual did not know the weapon was a firearm.
  • The individual did not possess the weapon: In some cases, an individual may be charged with a firearms offense even though they did not actually possess the weapon. For example, an individual may be charged with unlawful possession of a firearm if the firearm is found in a car that the individual was driving. An attorney can convince a jury that the individual did not actually possess the weapon.
  • The weapon was not operable: To be convicted of a firearms offense, the government must prove that the weapon was operable. Sometimes, an individual may own an antique firearm that is not operable. Other times, an individual may be in possession of a firearm that has been modified to make it inoperable. An attorney can show that the weapon being possessed poses no danger due to its inability to be fired.
  • The police entrapped the individual: Entrapment occurs when the police induce an individual to commit a crime that the individual would not have otherwise committed. For example, an undercover police officer may try to sell an individual a firearm even though the individual has no intention of buying a firearm. If the individual buys the firearm, they may be charged with unlawful possession of a firearm. An attorney can prove that the police entrapped the individual.

Self-Defense: An effective legal defense to a criminal charge of using a firearm is that you used it for self-defense. California’s self-defense law allows you to defend yourself with reasonable force if you have a reasonable belief that your life is in grave danger.

You Have A Permit To Carry A Gun: One of the most common defenses that people in California have to a charge of possessing a firearm is that they are legally permitted to do so. Proving that you have a valid permit to possess or carry a firearm and that you were abiding by the rules of this permit can be a defense against a criminal accusation that you were violating the law.

Lack Of Knowledge: Firearm possession laws require you to know that you were carrying a gun at the time of your arrest. If you were unaware that you were carrying your weapon, for example, or a friend left their gun in your car and the police found it when you got pulled over, lack of knowledge can be an effective defense to a charge of possession of a firearm.

Illegal Search Or Seizure: Finally, a defense that can always be raised to a criminal accusation, including for a firearms or weapons charge, is that the police found evidence during a search or seizure that violated your constitutional rights against unlawful search or seizure. If successful, this defense can prevent the prosecutor from introducing illegally obtained evidence in your trial. This can make it difficult or impossible for the prosecutor to prove the case against you.

Contact Ernenwein & Mathes, LLP, Today

Ernenwein & Mathes, LLP, is a boutique law firm that specializes in defending individuals who have been charged with serious crimes, including weapons offenses. Contact us today to schedule a consultation with an experienced criminal defense attorney who can fight for you.

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