Felon in Possession of a Firearm
If
you have been convicted of a felony in Michigan, you will lose your right to
use, possess, transport, sell, purchase, carry, ship, receive, or distribute a
firearm under MCL 740.224f. You can eventually have this right restored. How
long you have to wait and the procedure for re-establishing these rights
depends on what type of felony you were convicted of.
If
you are a convicted felon (meaning you have previously been convicted of a
crime that carries a minimum sentence of four years in prison), your firearm rights
have not been restored, and you are in possession of a firearm, bad things are
going to happen to you very rapidly. For instance, besides the felon in
possession of a firearm charge, you will be charged with felony firearm meaning
you used or possessed a firearm during the commission of a felony; the felony
being a felon in possession of a firearm. If the firearm was concealed, you
will get another felony charge for carrying a concealed weapon. That's right--
three felony charges from one incident. To make matters worse, the felony
firearm charge carries a mandatory minimum sentence of two years that must be served
consecutively (after the sentence on your other conviction is served)
regardless of what your sentencing guidelines are. This is a very serious
charge that can have a devastating impact on your life and future. Also, a lot
of prosecutors will not plea bargain with charges that involve a weapon, or at
least, they'll try to stick you with the felony firearm charge. Either way, if
you plead out or lose at trial, you're stuck with another felony and you're
going to prison.
Since
the consequences of this charge and other related charges are so severe, it is
vital that you have a Michigan criminal defense attorney with experience in
firearms crimes defending you. The first step is to see if there are any ways
that the seizure of the weapon can be challenged. Always look to see if there
are any Fourth or Fifth Amendment violations in relation to the police stop or
investigation or the finding and seizing of the weapon. Did the police have a
warrant or a valid warrant exception? Did the warrant meet the specificity
requirements? Was there probable cause for the arrest? Was there reasonable
suspicion for the pat down? All of these details must be carefully evaluated
and meticulously scrutinized for any issues that could be used to get the
evidence suppressed or to be used as leverage when negotiating with the
prosecutor for a reduction or dismissal of the charges.
Definition
of Firearm
MCL
750.222(d) defines a firearm as a weapon from which a dangerous projectile may
be propelled by an explosive, or by gas or air. It does not include a smooth
bore rifle or handgun designed and manufactured exclusively for propelling a
spring, or by gas or air, BBs not exceeding .177 caliber.
Constructive
Possession
Actual
physical possession is not required to be found guilty of this offense.
Constructive possession will be enough. The focus is on the proximity to the
firearm and the indicia of control. In other words, constructive possession
considers whether the defendant knows the location of the firearm and whether
the firearm is reasonably accessible to the defendant. Possession can also be
demonstrated by joint possession, meaning that two or more defendants were
acting in concert and thus everyone involved can be guilty of possession.
Operability
of the Firearm
It
is not a defense if the firearm was not operable. The prosecution does not need
to prove that the firearm was operable or reasonably or readily operable. The
statute only requires that the firearm be designed or intended to propel a
dangerous projectile. Inoperability is not a defense.
Self
Defense
If
a convicted felon was in possession of or using a firearm for self-defense or
in defense of others, it can be a valid defense to this crime. This heavily
depends on the surrounding circumstances and whether it was proper to be in
fear of death or imminent physical harm to either yourself or another.