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Possession of a Firearm

UPDATED: July 10, 2012

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Possession of a firearm can have a dramatic impact on a defendant's case. During arraignment, defendants are advised of the basic nature of the charges and the general punishment range associated with the charge. However, a prosecutor can ask for a higher punishment than what is within the range because the defendant was in possession of a firearm.

Every state has rules regarding when and how convicted felons can or cannot possess firearms. This is a separate charge called felon in possession of a firearm. However, even when a defendant is not a convicted felon, the possession of a firearm can impact criminal history, range of punishment and parole eligibility.

Criminal History

The mere possession of a firearm can have two main impacts on a defendant's criminal record. The first impact is that possession can result in additional charges simply for possessing a firearm. Felons are perhaps most commonly banned from possessing a firearm, however, other classes of people can be prohibited too.

For example, under federal statutes, persons addicted to controlled substances are not allowed to possess a gun. If a defendant is arrested for a simple possession of controlled substance and there police find more evidence that the person is an addict (multiple syringes, used baggies, etc.), the defendant could face an additional weapon charge of prohibited person in possession of a firearm. Many states also prohibit persons who have had protective orders entered against them from possessing a firearm. Theycan be charged, even if there are no other associated offenses or acts of violence committed.

The second impact is on the level of current charges. Possession of a firearm during the commission of an offense can result in an elevation (or increase) of charges. For example, in Texas, if a defendant stole $1,000 from a convenience store without any use of force (e.g. by handing the clerk a note saying "give me the money"), then the defendant would only be guilty of a Class A misdemeanor, punishable by a year in jail. If the defendant displayed a gun, the charge would increase to aggravated robbery with a punishment range from five to ninety-nine years or life in prison.

The same type of application is used in other charges like sexual assault, burglary, family violence, and escape. An elevated charge almost always results in a higher range of punishment.

Punishment for Possession of a Firearm

The punishment for possessing a firearm will increase as the factors surrounding the possession increase. A defendant charged with possessing a firearm after a protective order with no other offenses, will face a higher level misdemeanor or lower level felony punishment, ranging from probation to a couple years in jail. A prohibited person in possession of a firearm will face a felony range of punishment from probation to up to ten years in jail.

If the firearm was in possession during the commission of another offense, like a theft or burglary, the charge becomes aggravated. This means that a defendant could face a stiffer penalty range from five to ninety-nine years. The exact range will depend on the state’s penal code. Even if the penalty range is not affected, the possession of a firearm can have other consequences.

Parole Consequences

Some states have rules that automatically consider a firearm a deadly weapon. Other states require a specific showing and finding by the judge that the instrument was a weapon or firearm. If a finding of deadly weapon or firearm is entered in a judgment against a defendant, it could affect parole eligibility, even if the length of sentence is not affected.

For example, if a defendant is sentenced to ten years in Texas for a possession of controlled substance charge, he or she would normally only have to complete one-quarter of the time before becoming eligible for parole. However, if the defendant with the same charge was in possession of a firearm or deadly weapon, he or she would be required to complete one-half of the sentence before becoming eligible for parole.

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