In the state of California, a bat, rock, knife, stick or any other defining instrument may be defined as a weapon, not solely a firearm, according to California’s Penal Code 16590.
There are a plethora of different instruments that can constitute as a weapon, such as:
• Brass knuckles
• Other instruments that can inflict harm
In California, the “wobbler” system applies. This system is in reference to the crime being convicted as either a misdemeanor or a felony dependent upon the specifics of the crime itself on a case by case basis. There are multiple penalties to a weapon offense. For example, even a misdemeanor conviction can constitute up to a 10 year firearm banning on the defendant as well as prohibition of a defendant ever possessing a legal firearm if convicted as a felony. Here are some examples of California’s penalties:
• State licensing issues
• Possibility of a permanent criminal record
• Permanent firearm restriction and ban (ownership)
• Serve time in either California state prison or county jail • Probation or parole
• Immigration problems
If convicted of a misdemeanor, a defendant may face up to $1000 fine and/or up to 1 year in county jail. If a defendant is convicted of a felony, the penalty can be up to 3 years in county jail and/or a fine of $10,000.
Legal Defenses to Weapon Offense
There are some common legal defenses to a weapon offense charge:
There are 2 distinct types of possession regarding weapon offense, actual possession and constructive possession. This is a challenge for prosecuting attorneys in order to deem if the possession was fully or for example, if a firearm was in the drawer of a kitchen in a home with multiple occupants.
Unlawful Search & Seizure
An officer must provide either a warrant or probable cause in order to search a home, car, etc. and obtain weapons. The Fourth Amendment constitutes that a weapon can and will not be used as evidence and the prosecution of the defendant will cease. Officers must have permission to seize a person and/or their property. There must be a consent from the defendant if there is no warrant or probable cause.
There are mitigating circumstances that would illicit a defendant the right to possess a weapon, such as the legal defense of self- defense. It is deemed if the defendant is in a situation where they must defend themselves with use of a weapon, it is legal and just if used to prevent injury, harm or death.
Lack of Knowledge
It is possible for a defendant to not have the awareness of weapon possession. A great example is if a friend left their weapon in the car and the driver was unaware of the weapon itself.
For all the listed reasons, it is important to have great attorneys on your side. The Law Offices of Kerry L. Armstrong come equipped with the best lawyers in order to represent and defend the accused on all vehicular manslaughter crime convictions.
The talent of the lawyers is apparent due to the sensitive nature of these cases and the special attention each defendant receives throughout this tedious process.