The police have discretion on who to arrest and it depends on where the gun is found. However, if the gun is not on someone's person generally the police arrest everyone under the automobile presumption, which states:
PL 265.15(3). The presence in an automobile, other than a stolen one or a public
omnibus, of any firearm, large capacity ammunition feeding device,
defaced firearm, defaced rifle or shotgun, defaced large capacity
ammunition feeding device, firearm silencer, explosive or incendiary
bomb, bombshell, gravity knife, switchblade knife, pilum ballistic
knife, metal knuckle knife, dagger, dirk, stiletto, billy, blackjack,
plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub or
slungshot is presumptive evidence of its possession by all persons
occupying such automobile at the time such weapon, instrument or
appliance is found, except under the following circumstances: (a) if
such weapon, instrument or appliance is found upon the person of one of
the occupants therein; (b) if such weapon, instrument or appliance is
found in an automobile which is being operated for hire by a duly
licensed driver in the due, lawful and proper pursuit of his or her
trade, then such presumption shall not apply to the driver; or (c) if
the weapon so found is a pistol or revolver and one of the occupants,
not present under duress, has in his or her possession a valid license
to have and carry concealed the same.
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Under the automobile presumption, cops feel they are authorized to arrest everyone in the car. Get yourself a good criminal defense attorney.
I am a co-author of WEITZ ON AUTOMOBILE LITIGATION: THE NO FAULT HANDBOOK. The opinions expressed in this answer are not intended to be taken as legal advice. These opinions are based on New York practice. I may be contacted at 212-553-9300.
They can't prove who the driver was so they can't charge him.
Joseph A. Lo Piccolo, Esq.
Past President, Criminal Courts Bar Association
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)
I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.
Constructive possession is attributed to all.
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