Watch this short video where David explains Misconduct Involving a Weapon in Arizona:
Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-3102 “Misconduct Involving Weapons” can occur in numerous ways, and it is best to consult a defense attorney immediately upon charging by the State to learn about the details of your case.
Usually Misconduct Involving Weapons is charged when a person knowingly carries a deadly weapon without a permit (except a pocket knife) in the furtherance of a serious offense, a violent crime, or any other felony offense. It can also be charged by failing to accurately answer a law enforcement officer if the officer asks whether the person is carrying a concealed deadly weapon, or carrying a concealed deadly weapon under the age of twenty-one (21). Misconduct is also heavily charged when a “prohibited possessor” (i.e., a convicted felon who is prohibited from possessing a weapon) is found to be in possession of a weapon.
Additional grounds for a Misconduct charge include defacing a weapon (i.e., a “sawed off” shotgun) or possessing a weapon in a prohibited place (such as a school). This crime can also occur if you supply, sell, or provide a gun to a person if you know, or have reason to know, that person will use that gun during the commission of a felony. The most serious Misconduct Involving a Weapon allegations are when a gun is discharged at an occupied structure in order to assist, promote, or further the interests of a street gang, criminal syndicate, or racketeering enterprise (i.e., a “drive-by” but without a car), or using, possessing, or exercising control over a deadly weapon in furtherance of any act of terrorism.
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Possible Punishment to Misconduct Involving a Weapon
Because there are so many ways that a defendant can be charged with Misconduct Involving a Weapon, the possible punishments range from relatively light punishment, to extremely lengthy prison sentences. Here are some of the possible punishment ranges for some of the more commonly charged provisions.
A Misconduct Involving a Weapon allegation based on using a deadly weapon in furtherance of an act of terrorism is a class two (2) felony. The punishment can be probation with zero (0) days in jail up to one (1) year in jail, or prison of three (3) years to twelve and one half (12.5) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the “prison only” range is four and one half (4.5) years to twenty-three and one quarter (23.25) years in prison. If the person has two (2) allegeable historical prior convictions, then the “prison only” range is ten and one half (10.5) to thirty-five (35) years of incarceration.
If the Misconduct involves a “walk-by” shooting into an occupied structure, or selling or supplying a gun to another person if you know or have reason to know that person will use the gun in a commission of a felony, it is charged as a class three (3) felony. For a first offense class three (3) felony, punishment can be probation with zero (0) days to one (1) year in jail, or prison range of two (2) to eight and three quarters (8.75) years in prison. If the person has one (1) allegeable historical prior conviction then the “prison only” range is three and one half (3.5) years to sixteen and one quarter (16.25) years of incarceration. If the person has two (2) allegeable historical prior convictions, then the “prison only” range is seven and one half (7.5) years to twenty-five (25) years of incarceration.
If the Misconduct involves the manufacturing or selling of prohibited weapons, prohibitive possessor, use of the weapon during the commission of certain types of felonies, or entering a nuclear hydroelectric generation station without permission while carrying a deadly weapon, it is charged as a class four (4) felony. For a first offense class four (4) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail, or prison of one (1) year to three and three quarters (3.75) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the “prison only” range is two and one quarter (2.25) to seven and one half (7.5) years of incarceration. If the person has two (2) allegeable historical prior convictions, then the “prison only” range is six (6) to fifteen (15) years of incarceration.
If the Misconduct involves selling or transferring a deadly weapon to a prohibited possessor, defacing a deadly weapon (i.e., a sawed-off shotgun), or carrying a concealed deadly weapon without a permit, it is charged as a class six (6) felony. For a first offense a class six (6) felony, punishment can be probation with zero (0) days up to one (1) year in jail, or prison of four (4) months to two (2) years of incarceration. If the person has one (1) historical allegeable prior felony conviction, then the “prison only” range is nine (9) months to two and three quarters (2.75) years in prison. If the person has two (2) historical allegeable prior felony convictions, then the “prison only” range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
If the Misconduct involves entering a public event or public establishment, carrying a deadly weapon after a reasonable request was made by a person of authority in the establishment to remove the weapon, or entering a polling place on election day with a deadly weapon, it is charged as class one (1) misdemeanor. The range of punishment for a class one (1) misdemeanor is probation with anywhere from zero (0) days in jail up to six (6) months in jail, and a fine of up to $2,500.00 plus an 80% surcharge.
Possible Defenses to Misconduct Involving a Weapon
Misconduct Involving a Weapon has numerous statutory defenses, and lists specific situations where each of the prohibited weapons violations do not apply. Because there are so many different ways that one can be charged and convicted with a Misconduct Involving a Weapon offense, and so many statutory defenses that apply to only some of those allegations, it is important to meet face to face with an attorney to discuss which defenses are applicable to you. For example, if you are a member of the military or law enforcement, many of these charges do not apply. In addition, if you have a gun holster which is carried on a belt and wholly or partially visible, it is a defense to some of the allegations of a Misconduct Involving a Weapon charge. A defense to having a gun on school grounds is if the gun is in your car, so long as the gun is not loaded, and if the vehicle is unattended the firearm cannot be visible from the outside of the car, and the car must be locked. Also, if under the age of 21, it is a defense to carry a gun inside of your car so long as it is in a storage box or trunk.
One defense that is applicable to all of the Misconduct with a Weapon charges is that the defendant was unaware that he had the gun with him. For example, a prohibited possessor (i.e., a convicted felony) is given a package which contains a weapon or is driving an automobile that he borrowed in which there is a gun in a console or glove box without his knowledge. Because the mere possession of a weapon for a convicted felon carries such severe punishment, it is important to fully fight these charges. In addition, any conviction involving Misconduct with a Weapon can result in child custody repercussions should a person later go through a divorce. It is very important to fight these charges in order to prevent this type of “black mark” on one’s record that can have long-term and wide ranging collateral consequences.
Additionally, because our law firm fights conviction from all angles, we would assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those we frequently assert is a “Miranda rights violation.” In Arizona, the standard of whether any incriminating statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, the “denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their attorney, but is denied and questioning continues.
Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what else you have been charged with, this could include exposing flawed procedures regarding fingerprints analysis; DNA testing; ballistics; gunshot residue testing; etc.. Lastly, one of the most common defense tactics is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled Misconduct with a Weapon lawyer to defend you who has knowledge of all the possible defenses to assert in your case.
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