Defenses To Misconduct Involving Weapons

Today we’re talking about a crime in Arizona called Misconduct Involving Weapons, and specifically the best defenses that we often see in these types of cases.

So in other videos, we’ve explained what misconduct involving weapons is.

Today we’re going to talk about how to attack some of the elements of the law and what some defenses are that may or may not be applicable in your particular case or if you’re watching this for somebody you love, their case.

So let’s jump into it.

So the first thing that we see in most cases is there’s a question about knowledge so did the person, who has the weapon, that is alleged to have been in their possession, did they know about it? Did they know the weapon even existed?

We see this in most commonly in situations where somebody is stopped at a car, it’s a prohibited possessor, somebody had a conviction for a felony and there’s a weapon, there’s a firearm in the vehicle.

And so it’s very common with what’s called a prohibited possessor.

Was that person even aware of the weapon? Was the weapon in the glove box? Was it in the trunk? Was it under their seat? A lot the times the police will try to say that they knew about or they should’ve known about it and therefore that is within their possession, they had full knowledge of it. If you can show that there was actual knowledge if there’s no indication that the person knew that there was even a weapon there. How could they possibly be in possession of something they did not know existed? So what we want to look for in these types of cases is the question is to whether or not the person who’s being charge with the crime, did they make admissions? Did they make any confessions? Did they acknowledge the existence of the weapon?

If the person said, yes I knew the weapon was there or yes I knew that was in my possession, but when I got pulled over I put it under the seat.

Well, that’s going to make that element pretty difficult to overcome, but a lot of the times what the police will do is they will twist somebody’s words around.

So the person will acknowledge certain things and the police will connect the dots. They’ll take a lot of their statements and suddenly imply that they meet the element of knowledge and so having knowledge about the existence of something is very important.

If you can show there was, in fact, no knowledge and that none of the admissions or confessions or acknowledgement or any awareness of it existed.

You might be able to beat that element of the underlying charge. Closely related is the next defense, it’s called possession. Is there, what’s called a sufficient nexus between the person and the weapon.

So is this something that the person, they may have known the weapon existed but were they actually in possession of it.

If you look up the statute, the definition of the possession under the User Owner Revised Statutes, you’re going to see the language that says dominion and control. So did the person has actual possession of the weapon?

The example that we use is, say there’s a situation where there’s two roommates or three or four roommates and they all live in a house and so the person who’s being charged with misconduct involving weapons, he may have known that other roommates had weapons, but was he actually in possession of those? So it’s called prohibited possessor. Did that person actually possess the weapons?

If they were in close proximity to that but they didn’t exercise any dominion or control over the weapon itself.

It wasn’t there’s is was in their roommates room, it was in a common area, something along those lines, you can show that that person who’s being alleged to have been in possession was in fact not in possession and that’s a key element, they have got to prove actual possession or constructive possession, there’s a lot of legal jargon we can get into on that, but that’s the element, that’s what you’re looking for.

Who was actually in possession? Who had dominion? Who had control over the weapon in question? The other thing we want to of course determine, was it actually a weapon? This is more in common for offenses that don’t involve firearms, so things like explosives or dry ice bombs or explosive things, where you have a series of chemicals that mixed for legitimate purposes, they could also be mixed for weapon purposes, so you want to make the argument that it, in fact, wasn’t a weapon, it was used for other things.

We’re using it for demolition, we’re using it for construction, we use it for a science experiment, we use nunchucks for martial arts training, it’s not actually being used as a weapon. And so you make the argument and make the case that it’s not actually a weapon.

So you may be a prohibited possessor, your somebody who was convicted of a felony, but that doesn’t mean that you were actually in possession of a weapon and it shouldn’t be governed by the misconduct involving weapons statutes.

So if you can show that it wasn’t, in fact, a weapon, you want to do that because going to defeat the charge. Another big part of misconduct involving weapons, if you look at the statute it’s very, very big.

There’s a lot of definitions, there’s a lot of exceptions, and exclusions, where the actual language doesn’t apply.

There are certain areas where there are exceptions that are carved out of the statutes.

So, for example, if you are using a weapon for mixed martial arts or if you’re using it in a lawful demonstration, it’s going to take it outside of the misconduct involving weapons statutes. Sometimes prosecutors, police officers, they overlook these exceptions.

So you want to make sure that you’re running through that statute with a fine-toothed comb. See if any of the facts in your case would be applicable to one of these exceptions. And that way some conduct that would have been ordinarily covered by the statute we now pull it out. So statutory exclusion is a big part of it.

And then, of course, we look at the common evidentiary problems.

So if the police are saying that they found a weapon and they believe that it was a prohibited possessor or was in somebody’s possession, who was a convicted felon and so, therefore, they are not allowed to have that, how can they make that connection? What type of evidence can they bring into court and introduce to show that that person did have possession?

So, when we’re looking at those things, we’re looking at these types of components.

First of all, was there any chemical testing that was completed on explosives, on firearm gun– firearm residue, so when you shoot a firearm it omits a big plume of smoke and there’s residue, a gun powder that will actually go on your hands, go on your clothing and those types of things.

So are they able to actually make that connection? Are they able to show that there was a gunshot residue that connects the person to the firearm? Similarly, fingerprint connections, so are there actually any fingerprint residue? Are they able to do some forensic testing on that? And see if they can pull those fingerprints off the firearm, off the explosives, off whatever the prohibited weapon is? Are they able to do that sufficiently? Is there any way that we could undermine their credibility? Did they do it properly? Can we have an expert witness come in and say they did not do it properly? That’s another component.

The same thing with DNA testing, we’ll do this where there’s skin or other DNA material that would be connected to certain devices, certain weapons, certain firearms, you want to make sure that those are being tested appropriately. Identify potentials for false positives and those types of things.

You’re also looking for photo lineups so if there are other witnesses who are involved, people who are going to be identifying the person as being the person who fired the firearm or who was in possession of the firearm or who was manufacturing x, y and z.

Are they able to properly identify that? Was there any undo influence during the photo lineup process? Were the police doing anything to bias that individual?

Picking out the person who they’re claiming was at fault for this thing. So there’s a lot that goes into that.

There’s a lot of psychology, there’s a lot review of the evidence, of the video footage, of the recordings, of the other people who are in the lineup.

What kind of influence did the police have over that process? That may be a big problem. And of course, you’re looking at Miranda violation.

So this is pretty common amongst a lot of criminal cases, but did the police do their interrogation properly? Did they Mirandize the individual properly? Were any of these statements, admissions, confessions, were those taken in violation of Miranda. Miranda was a case that was decided in Arizona a couple of decades ago and so it is a very important thing that sometimes the police get a little bit sloppy with.

So they’ll start asking questions, in violation of Miranda, and so if you can show that there was a violation there, any of those statements that you made may not actually come into court. We want to look into those things as well.

So if you’ve been charged with misconduct involving weapons, there’s a number of different ways that you can be cited and charged with this. Give our office a call.

These are just the very topical defenses that we see, sort of out of the gate on a lot of these things, you want to make sure that you’re covering these bases. There are many other defenses that are applicable to misconduct cases and criminal cases across the board.

So give our office a call, we offer free case evaluations, we’re happy to sit down with you, put together a plan to make sure you have a good understanding of how we can get you through this, with the least amount of damage possible. We look forward to speaking with you.

Thanks for watching.

5 Defense Strategies To A Misconduct Involving Weapons Charge In Arizona?

Although there are numerous possible ways to defend any case, if you or someone you know has been charged with Misconduct Involving Weapons, here are five common elements that may be considered in your defense strategy.

1. Knowledge

To begin with, there is a question about knowledge.  In other words, did the person even know that the weapon existed?  Were they aware of it? We see this most often when a prohibited possessor is stopped and there is a weapon in the vehicle. Were they even aware that the weapon existed?

So, what we’re looking for here is whether or not the person being charged with the crime made some type of admission or confession or acknowledged the existence of the weapon.  If they said, “Yes I knew the weapon was there,” or “Yes, I knew I had the gun and I put it under the seat when I got pulled over.” Well, that would make it rather difficult to overcome this element.  

However, often the police will twist people’s words.  They will take some other acknowledgements or statements, connect the dots on their own, and then imply that the person met this element of knowledge.  This is important, because if we can prove that the person had no knowledge, then we might be able to beat that element of the underlying charge.

2. Possession

Closely related to the first defense is the next one – possession.  Is there something that is called a sufficient nexus between the person and the weapon? The person may have known that the weapon existed, but did they have possession? When you look up the definition of possession under the Arizona revised statutes you will see language that includes the words “dominion and control”. 

A good example to illustrate this point is saying that there are three or four roommates and they all live in a house. The person who’s being charged with misconduct involving weapons may have known that the other roommates had weapons, but was he actually in possession of them? He may have been in close proximity to a weapon, the weapon may have been in a common area, or in a roommate’s room, but if he didn’t have possession – he didn’t exercise any “dominion or control” over the weapon itself – then that is a key element of defense.

3. Weapon?

The third thing we want to determine, of course, is was it actually a weapon?  This comes more into play in cases involving explosives, or dry ice bombs, or you have a series of chemicals that could be mixed for legitimate purposes, but also for weapon purposes.  You want to make the argument that it really wasn’t a weapon. You were using it for other things, like demolition or construction or a science experiment, etc. You might be a prohibited possessor, someone who was convicted of a felony, but that doesn’t mean that you were in possession of a weapon. And it shouldn’t be governed by the misconduct involving weapons statute. If you can effectively show that what was in your possession wasn’t actually a weapon, then you can defeat the charge. 

4. Statutory Exclusion?

A fourth element we look into is the statute of misconduct involving weapons itself.  The statute is very big with a lot of exceptions and exclusions where the actual language doesn’t apply. In other words, there are exceptions that are carved out of the statute. For example, if you are using the “weapon” in mixed martial arts, or for lawful demonstration, it’s going to take it outside the misconduct involving weapons statute.  Sometimes prosecutors and police officers will overlook these exceptions. So, you want to make sure that you run through the statute with a fine-toothed comb to see if the facts in your case could be applicable to one of the exceptions.

5. Evidentiary Challenges

Finally, we look at the actual evidence itself, and any problems with it.  So, for example, how do you actually prove that someone was in possession of a weapon?  What evidence is there that can be brought into court? There are a number of components that need to be considered.  

First, was there any chemical testing done?  Was there any gunshot residue to connect the person to the firearm?  Secondly, what about any fingerprint connections? Is there any forensic evidence that can pull fingerprints from the firearm and connect it to the person?  If so, was the evidence collected properly? Third, what about DNA testing, and the possibility of false positives? Fourth, we check into photo line-ups, and whether there was any undue influence, perhaps on other witnesses that might be identifying the alleged person in possession of the firearm. And finally, as in the majority of our criminal cases, we look into any potential Miranda violations.  Did the police do their investigation properly? Were any of the statements, admissions, or confessions taken in violation of Miranda? Sometimes police can get a little sloppy when it comes to this, and we want to hold them accountable.

So, if you’ve been charged with misconduct involving weapons, please give our office a call.  These are just some of the defenses we could use. There are many others that could be applicable.  We offer a free case evaluation and would be happy to sit down with you and put together a plan to make sure you have a good understanding of how we can get you through this.