Possession and use of Firearms and other Weapons is a topic always up for debate and has been for many years. The Commonwealth of Virginia regulates guns, pistols, revolvers, and other weapons through its written statutes. Firearms laws are written to define who may or may not possess a firearm, what constitutes a firearm, and what process is required in order to lawfully possess such an item. Criminal laws have also been written to address what types of action or inaction involving weapons can constitute a crime and what type of punishment one will receive if laws are broken when the use of a firearm is involved.
Felons And Guns
Possession or Transportation of firearm by convicted felons under Va. Code Ann. §18.2-308.2
As a defense attorney in Northern Virginia, Attorney Sheryl Shane has handled several charges involving the crime of Possession or Transportation of firearm by convicted felons under Va. Code Ann. §18.2-308.2. In fact, in one instance, Attorney Sheryl Shane won a case involving this charge on a Motion to Strike at the Circuit Court level. Because of the the Defense's well thought out legal argument and this attorney's persuasiveness, the judge ruled the case would not proceed to the jury to determine guilt or innocence. The case was finalized in favor of the Defendant in the early stages of the proceeding. The Defendant walked away a very happy free man.
Under Va. Code Ann. §18.2-308.2, the law states that it is against the law for certain felons to knowingly and intentionally carry a firearm, ammunition for a firearm, a stun weapon, or explosive material. This applies to:
- Persons convicted of felonies,
- Any child (14) fourteen years of age or older who has been adjudicated delinquent for certain murder, robbery, presentation of firearms, or rape charges,
- Any person under the age of (29) twenty-nine who has been found guilty at the age of (14) years or older of committing an offense which would have been deemed a felony if he or she was an adult at the time. (Excluding #2 crimes).
Violation of this statute will result in a Class 6 Felony. If the accused is found guilty of the crime and the prior conviction was deemed violent, there is a (5) year mandatory minimum incarceration period. If a person was convicted of any other felony within the past (10) ten years, there will be a (2) two-year mandatory minimum years of incarceration.
- A possible defense for stun guns may arise if the possession took place in one’s residence or the curtilage of the property.
- Exceptions may apply to carrying a firearm while being a member of the Armed Services of The United States, the National Guard, or Law-enforcement. A pardon, or removal of political disability may work.
For more possible defenses, it is important to hire an experienced lawyer in order to build the best defense possible for your case. Call Attorney Sheryl Shane at (703) 718 5533.
Drugs And Guns
Possession of a Firearm while in possession of certain substances – Va. Code Ann. §18.2-308.2.
It is commonsense that firearms and drugs do not mix. Yet, it is all too often where a client walks in the door and explains he was only present in the room and the parties were only dealing in marijuana. Then all of a sudden, someone brings a gun… somehow it goes off … and things get out of hand. People were hurt. None of this was intentional! The accused did not know other drugs would be brought to the scene. How was he or she to know one of the others was carrying a weapon under their jacket. So, an arrest takes place. This fact pattern is a familiar scenario. But, what occurs more frequently is that this Attorney is required to visit the jail to visit the client in this type of situation. After the client was arrested, the Magistrate determined the risk to the community was too high to release the defendant into the community. The jail is holding the individual unless the attorney is able to obtain a release through a bond motion and perhaps the bail/bond process. So, not only is it necessary to address the merits of the case, but we must convince a Judge to release the client on bond or on his own recognizance until the court hearings begin. Otherwise the client may be sitting in jail for a long period of time just to determine guilt or innocence.
Possession a firearm while in possession of illegal drugs is a serious crime. It is a Class (6) felony to knowingly and intentionally possess a firearm when unlawfully in possession of Controlled I or II substance drugs. Possession of the firearm is a distinct crime and separate crime from the underlying charge. When the firearm is on the offender’s person, the punishment includes at least (2) two years mandatory incarceration. This means that a person found guilty is not going to walk away with all suspended time. If the firearm is used in a threatening manner during certain illegal drug transactions, the punishment is more severe and requires at least (5) years mandatory incarceration. Not only are Class I and II drugs covered by this state, but (1) one pound of marijuana or more can land the individual in prison for this length of time. Marijuana may be legal in many states – but in The Commonwealth of Virginia it is important to note that weapons and guns together are not tolerated.
There are certain methods which can be utilized to defend one’s client in this type of situation. But you need to call and experienced lawyer like Sheryl Shane to learn the best avenue for you to take.
Hidden And Concealed Weapons
Concealed Weapons - Virginia Statute §18.2-308.2
Persons who enjoy weapons need to take great responsibility to learn how to use, carry, and transport these items properly. It is general knowledge that there is a never-ending debate as to whether the right to bare arms is an innate right given by the Constitution or simply a privilege given to the people. No matter which side of the fence you stand, the fact is that if you fail to follow mandated rules proscribed by laws, or commit certain crimes, you may be convicted of a crime and possibly lose your right to possess a firearm. One manner in which people may be arrested is in the case of carrying a concealed weapon in an unlawful manner.
Whether you are lawfully permitted to own a gun or not, if you carry it in a manner which is non-conforming to our laws – suspicions may rise – as to whether there is a danger to the community. Police may make an arrest. When Carrying a Concealed Weapon in an unlawful manner under Virginia Statute §18.2-308.2 - carrying it about one’s person and hidden from common observation – a law enforcement may charge you with a Class (1) misdemeanor for the first offense. If found guilty the first time around, any subsequent charges will be Felonies.
Circumstances where carry weapons may be permitted:
Persons who are permitted to carry a concealed weapon may carry a firearm while in a personal or private vehicle if the handgun is in a secured container or the vehicle compartment. Travelling to and from a shooting range, a place of purchase or repair, a firearm training course, a weapons exhibition is permitted when the correct procedures are followed. A person’s home and place of business are exempt from this statute.
Type of Weapons addressed by statute:
The items addressed include but are not limited to: pistols, revolvers; dirk, bowie, or ballistic knives, switchblades, machetes, razors; slingshots, metal knucks, nun-chucks, fighting chains, and discs with at least (2) points.
Persons with Special Privileges regarding Weapons:
Judges, Commonwealth Attorneys, and Law Enforcement may have special privileges.
Consult with your own knowledgeable attorney. Call Attorney Sheryl Shane – the Northern Virginia area attorney you want in your corner.
Weapons While Committing A Crime
Virginia Statute §18.2-308.2 - Use or Display a Firearm while in the act of committing a Felony
The Commonwealth of Virginia treats those who Use or Display a Firearm while in the act of committing a felony more harshly than if the underlying crime was committed without a weapon. The Virginia law addresses this matter is VA Code. Ann. § 18.2-53.1. Basically, it states that if a party uses or attempt to use a firearm or if such a person displays the firearm in a threatening manner while attempting or committing various specified Felony crimes – than the person convicted of such crime deserves a more severe punishment. The weapons included under this statute include but are not limited to a pistol, rifle, or perhaps a shotgun. Crimes covered by this statute generally cover those involving violence, unlawful sex acts, or crimes involving a combination of violence and theft.
- If a person is convicted of carrying weapons while committing a serious felony, one should be aware that the charge will be separate and distinct. Punishments for this crime will run consecutively with the underlying felony charge. This means the time served for both crimes will run one after another instead of running concurrently (at the same time).
- For instance, if a perpetrator is whipping a gun around and robbing a bank, he or she may be charged with two crimes and receive separate punishments for each.
The Weapon Charge can set you up for a (3) three-year mandatory term of imprisonment. A subsequent offense may land you (5) five years. The Commonwealth’s primary goal is to deter future Illegal use of weapons, and more specifically in this statute, in conjunction with a crime.
Hire an attorney who can help rid you of this charge or amend to a lesser charge without mandatory prison time. The Law Office of Sheryl Shane has handled many of these cases.
Brandishing Weapons In Unlawful Manner
One must be careful how weapons are handled. Whether the item is a firearm, machete, or a different type of blade object. Public policy would indicate that people should be able to walk freely on the streets and on other private and pubic properties. Weapons are permitted to the public in limited circumstances. So, if an individual does not respect the proper and accepted means of possessing and using a weapon, and uses it in a manner to frighten others, criminal penalties may apply.
Firearms - VA Code Ann. § 18.2-282
Brandishing, pointing, or holding a firearm, air or gas operated weapon or object similar in appearance under Va. Code Ann. §18.2-282 is unlawful where it is done in such a manner as to:
1. Reasonably induce fear in another
2. Or, if it is done in a public place, to induce fear of being shot or injured.
It is a Class (1) misdemeanor to violate this law and it is raised to a Class (6) felony if it takes place on school grounds or within (1000 ft) one thousand feet of school grounds.
- Whether the firearm, air or gas operated weapon is operable or not is irrelevant to guilt. The act of brandishing or pointing and the fear induced and the threat of harm are the emphasis of this crime.
- Brandishing and pointing at (3) separate people in one event may lead to three (3) separate charges.
- One may be found guilty of the crime for using a flare gun.
- The Definition of a Firearm -is a weapon that was designed for or will or be readily converted to expel projectile(s) by an action of an explosion of combustible material.
- The Definition of Ammunition can include: ball, missile, pellet, cartridge, or projectile adapted for one to use in a firearm.
- Excusable or justifiable self-defense may be an argument for the Defense Lawyer.
- Protecting property from an armed trespasser may be a defense. The protection must be reasonably proportionate to the threat of harm.
Machetes and other bladed objects- VA Code Ann. § 18.2-282.1
Under Va. Code Ann. § 18.2-282.1, Brandishing or pointing a Machete or Other Blade is a similar crime to brandishing a firearm except that different weapons are used. In order to convict the defendant in these cases, the prosecutor must show beyond a reasonable doubt that the accused pointed, held or brandished a machete or some kind of weapon with at least a 12” twelve- inch blade. It must also be shown that did so with the intent to intimidate others, and that it was done in such a way to demonstrate the intent.
Punishment: The punishment is a Class (1) misdemeanor. When the act is committed on school grounds or (1000) one thousand feet with in the property, the punishment is a Class (6) felony.
- Defenses to brandishing a machete or other bladed weapon may be excuse or justification.
Weapons Being Used In Unlawful Manner At The Wrong Place
There is a time and place where weapons may be used in a lawful manner. To go against those standards may result in serious consequences. Using a firearm in a home, a business or any other building where people are present can lead to serious injury or even death. Because of this – strict law have been passed regarding wrongful discharge of a weapon.
Under Va. Code Ann. § 18.2-279: It is a crime:
- To discharges a firearm in an occupied building where there is one or more persons
- The weapon was discharged in a way to endanger a person or person(s) lives.
If the act was done with malice then the punishment is a Class (4) Felony, so long as no one was killed as a result of such. If a death occurs, the accused with be charged with murder in the second degree. If the homicide was deliberate, willful and premeditated, the charge will be murder in the first degree.
Now, if there was no malice involved, the charge would be a lesser offense – a Class (6) Felony -with a possibility of up to (5) years incarceration and a fine. But, if a person is killed under these circumstances, the accused would be charged with involuntary manslaughter.
What is Malice?
Malice can be described as having the mind-set to commit intentional wrongdoing without having a good legal defense for involvement or having no justifiable argument for being an actor or participator in such an act. For malice to be proven, the actor must have had control of reason. Malice can be a result of hatred, anger, or revenge. A judge or jury can infer malice from any willful, deliberate and cruel act against another person.
Heat of Passion or Accident - (Lesser Crime)
There may be act where a firearm is wrongfully discharged in a dwelling or at a dwelling and this occurs when the actor acted out of the heat of passion or by accident. Heat of passion is explained as one’s emotional state of mind which has arose out of provocation and he or she became so hot blooded, angered, full of rage, terror, or resentment, or fear. And this in turn caused the accused to act on impulse without conscious reflection. If a person acts upon reflection or deliberation, or after his passion has cooled, or there has been a reasonable time or opportunity for cooling, then the act is not attributable to heat of passion.
Under Va. Code Ann. § 18.2-279 – Accidental shooting or inadvertent discharge is not a defense. Intentional discharge is not an element of the crime.
Motor Vehicles - Shootings:
Va. Code Ann. - § 18.2-286.1. Shooting from vehicles so as to endanger persons; penalty
Now, it is common sense that one should not shoot a firearm from a vehicle. What is the purpose? What is the probability of someone being hurt or killed or property being destroyed? There is absolutely no reason to shoot from a vehicle unless trying to do mischief or to cause harm or damage. Certainly, the police will not permit drive by shootings. What is to distinguish between playing around shooting from the automobile versus intending a drive by shooting.?
Under Va. Statute Ann - § 18.2-286.1:
When you are either a driver or passenger in an automobile, truck, or other motor vehicle and you intentionally discharge a firearm, and cause a risk of injury or death, or if the other person feels reasonable apprehension of injury or death, then you make be looking to a Felony (5) charge. This can be a (10) year prison sentence. Fines will most likely be imposed.
- If you cause multiple shots, you will be charged with multiple felonies.
- If someone dies – the consequences are much serious.
Call Attorney Sheryl Shane if you are in a jam. A free consult will help you understand your charge and we can later discuss strategies to protect your freedom. Call our Fairfax Criminal Defense Lawyer at 703-718-5533