Misconduct Involving a Weapon
Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-3102 "Misconduct Involving Weapons" can occur in numerous ways. Usually it occurs when a person carries a weapon without a permit (except a pocket knife); when they conceal a deadly weapon (without a permit); when they are "prohibited possessor" (i.e., a convicted felon who is prohibited from possessing a weapon); 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 time that Misconduct Involving a Weapon is charged is 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).
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Possible Punishment
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 or in furtherance of an act of terrorism, then this can be charged as a class three (3) felony. For a first offense class three (3) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison range of two (2) years to eight and three quarters (8.75) years in prison. If the person has one (1) allegeable historical prior felony 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 felony 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, then this can be 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 felony prior conviction, then the "prison only" range is two and one quarter (2.25) years to seven and one half (7.5) years of incarceration. If the person has two (2) allegeable historical prior felony convictions, then the "prison only" range is six (6) years to fifteen (15) years of incarceration.
If the Misconduct involves selling or transferring a deadly weapon to a prohibited possessor; or defacing a deadly weapon (i.e., a sawed-off shotgun); possessing a defaced weapon; or entering school grounds with a gun and being a member of a street gang, then this can be charged as a class six (6) felony. For a first offense a class six (6) felony, punishment can be probation with zero (0) days in jail 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) allegeable historical 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) allegeable historical 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 carrying a deadly weapon without a permit; carrying a concealed weapon without a Concealed Weapon permit; 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, then these can be charged as a 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 $2500.00 plus an 80% surcharge.
Possible Defenses
Misconduct Involving a Weapon has numerous statutory defenses. 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 holster which is carried on a belt and which is wholly or partially visible, then this is a defense to the charge. Also, it is a defense to carry a gun inside of your car, as long as it is not loaded and if you leave the vehicle the firearm cannot be visible from the outside of the car, and the car must be locked. Many times Officers will state that a gun in the glove box qualifies as carrying a concealed weapon. Sometimes they will be under the assumption that if you leave a gun in plain sight on the seat next to you while you are still in the car, that somehow this is a violation of the law. It is only a violation if you leave the vehicle and leave the gun in plain sight. Other defenses include scenarios in which a prohibited possessor (i.e., a convicted felony) is given a package which contains a weapon without his knowledge (i.e., "Lack of Knowledge"). This can include driving an automobile in which there is a gun in a console or glove box without the prohibitive possessor's 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.
The "Common Defenses", which may apply in any criminal case are numerous and diverse. One of the most common defenses we encounter is a "Miranda Rights Violation". In Arizona, the standard of whether any inculpatory 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, "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 lawyer, but is denied and questioning continues. In certain cases (such as DUI) it is mandatory that you speak to an attorney as soon as possible in order to determine your rights before your body burns away the evidence of your presumably low alcohol content. Other defenses include challenging the validity of any search warrant, or whether there were any "forensic flaws" during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis / "cloning hard drive" procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
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