- Damien Miller
Felon in possession of a deadly weapon?
Prohibited Possessor/Felon in Possession of Deadly Weapon
In Arizona, when a previously convicted felon is charged with being in possession of a deadly weapon, the charge is called Misconduct Involving Weapons (A.R.S. §13-3102/§13-3101).
While many people know that once they have been convicted of a felony, they cannot possess a firearm or gun, many do not realize that they are not allowed to possess other “deadly weapons” designed for lethal use. Most often, a convicted felon has a knife in his possession and is surprised to learn that he is not allowed to possess that type of knife. He is then charged with misconduct involving weapons.
Misconduct involving weapons for a person who has previously been convicted as felon is a class 4 felony. This is a serious felony and anyone facing this charge should seek legal help.
Which weapons are prohibited for a felon?
Under the statute, a deadly weapon is anything designed for lethal use. This clearly includes firearms/guns but can be extended to other weapons, such as knives designed for lethal use. For e.g. the State’s experts regularly classify a knife with a hilt as a weapon designed for lethal use.
What if the weapon was not on my person?
Under the law, there are two types of possession: actual possession and constructive possession. Actual possession is easier for the prosecutor to prove. An item is in your actual possession if it is on your person e.g. in your hand, in your pocket or in your waistband.
Constructive possession is where an item is in the accused person’s dominion and control. This means that the person did not have the item physically on their person but the item was in a place where the person can be said to have exercised control over the item. Constructive possession is harder for the State to prove as the prosecutor must prove that the defendant knew the item was there.
Commonly found examples of constructive possession are:
· When a person is driving a car and an item in the center console or on the floor of the passenger seat.
· When a person is in a room and the illegal item was also in the room.
What if I did not know the weapon was there?
If the State is unable to prove beyond a reasonable doubt that you did not know the weapon was there, this may lead to a dismissal of the case. It is harder for the prosecutor to establish knowledge in cases of constructive possession than in cases of actual possession.
Designed for Lethal Use
The State must also prove that the weapon was designed for lethal use. This often becomes a battle of expert witnesses. If the State’s expert says the item was designed for lethal use and the defense expert says it was not, the jury must decide whether or not the State proved the item was designed for lethal use.
If you have been charged with misconduct involving weapons, call now for a free consultation.