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Guns and Criminal Convictions

Posted by attorney Carina Castaneda

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." This is the heavily debated Second Amendment of the U.S. Constitution. Due to recent anti-gun laws, many more individuals are now classified as “prohibited person." This means individuals whose possession of a firearm is considered a criminal offense.

In the midst of a growing interest in the viability of developing stricter gun laws, there are existing laws in place for those with criminal convictions. These laws will even be more strictly enforced in light of the Sandy Hook Elementary tragedy.

If you own guns and you suspect that you are a “prohibited person", you should immediately consult a qualified criminal defense attorney. This allows you to avoid criminal prosecution and to determine your legal options.

DENIALS BASED ON CRIMINAL CONVICTIONS: For example, before 1991 in California, only convicted felons and a small number of misdemeanor convicts were prohibited from owning handguns. On 1/1/91, thousands on California gun owners with certain misdemeanor convictions became subject to felony prosecution

Expungement does not restore firearm rights. Depending upon the conviction and eligibility, a felony conviction could be reduced to a misdemeanor. In most states, a felony conviction are either “straight felonies" or “wobblers". Wobblers are crimes in which the prosecution can either file the case either as a misdemeanor or a felony. Straight felonies must always be filed as a felony.

If your conviction is a straight felony charge, your attorney will need to assist you in obtaining a full pardon from the Governor to legally possess firearms. If the nature of your felony conviction makes you eligible, seeking a pardon is a lengthy and a very complicated procedure but there are certain factors that the Governor’s office will note. How you have led your life post-conviction and sentence will be critical. I always prepare a comprehensive package about my clients involving things such as a description of their family, work, community or charity work. The goal is to “humanize" my client.

For those charges that are wobblers, the attorney must file a motion to reduce the charge from a felony to a misdemeanor. Filing a motion with a hearing thereafter is required. As such, it is to your advantage to choose your attorney wisely. Again, it is crucial that your attorney convinces both the judge and the prosecutor that you are a viable candidate to have your felony conviction reduced to a misdemeanor.

For example, in California, if you are successful in having your conviction reduced, your gun rights are restored automatically after 10 years, subject to 2 major exceptions. First, convictions of certain firearm misdemeanors such as brandishing or discharge offenses are lifetime prohibition. In California a domestic violence conviction under current federal law results in denial for life.

DENIALS BASED ON PENDING FELONY CHARGES: If you are currently charged of a felony offense(s), you may not purchase or receive firearms. Unless, the court orders you not to possess guns as a condition of release on bail or on your own recognizance, guns you already lawfully possess may be retained.

DENIALS BASED ON RESTRAINING ORDERS: Many if not most restraining orders, especially in the domestic violence scenario, requires that “if you own any firearms, those firearms must be surrendered to a law enforcement agency within a certain number of hours—usually 24 hours." If this occurs to you, again immediately hire an attorney who will seek to have the order vacated (i.e. terminated) or modified. Delay may result in the loss of your gun right for up to five years. A criminal conviction will deny you the right to possess/own a gun.

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