Misconduct Involving Weapons charges in Arizona
Video Transcript: Misconduct Involving Weapons
We’ve talked about, in other videos, a set of people who are known as prohibited possessors, so what individuals are not allowed to have deadly weapons or prohibited weapons.
We’ve also talked about the weapons themselves, so what are considered prohibited weapons?
What type of explosives or firearm modifications or different accessories are prohibited weapons under the statute.
In this video, we’re talking about specific conduct. So what type of conduct is prohibited under Arizona law?
There’s 16 of them, we’re going to run through them quickly, because there’s so many, but first, let’s look to the statute.
It’s under Title 13-1302, misconduct involving weapons.
This is the type of conduct that if it is committed, is going to be considered illegal, you can charged with felonies or misdemeanors.
Let’s run through them, so first and foremost, if you have a deadly weapon on your person or in a car, and you are committing, or are in the process of committing, a serious, a violent, or a felony offense, that’s misconduct involving weapons.
If you have a weapon in the vehicle, and a law enforcement officer asks you about it, so let’s say an officer just stops you for a routine speeding ticket, asks, do you have a firearm in the vehicle?
You don’t acknowledge that, you don’t admit it?
They can charge you with a crime for that. It’s a subsection, doesn’t have to be in the commission of a crime, just if you just fail to acknowledge it, if an officer asks you, and you don’t acknowledge that you have one, they can charge you with a crime.
Similarly to that is that if you’re under the age of 21, and you have a concealed deadly weapon on your person or in your vehicle, meaning you cannot see the weapon at all, that’s a crime, it’s concealed.
There are exceptions to this, if it’s in a glove box, if it’s in a holster, if it’s in luggage, there are a lot of different variations on the exceptions to that, so if an officer can see a part of it, if they can see the handle sticking out, if it’s not totally concealed, there may be a defense, but if it’s concealed and you’re under the age of 21, that’s illegal. If you are manufacturing, possessing, selling, or transferring a prohibited weapon, and I talked about what those are in a different video, but if it’s a prohibited weapon, that’s illegal.
So just being in possession of a prohibited weapon can be enough to charge you with a crime.
If you are a prohibited possessor, so you’re somebody who’s convicted of a felony, you’re an undocumented immigrant, an undocumented alien, there’s a number of other prohibited possessors, and you are in possession of a deadly weapon, or a prohibited weapon, that is going to be a crime.
This is by far the most common way that we see misconduct involving weapons, somebody who’s convicted of a felony is found with a weapon, they’re charged with a new felony for having a weapon when they’re not allowed to, they’re prohibited possessors and they’re in possession of a deadly weapon.
If you sell or transfer a deadly weapon to a prohibited possessor, you can be charged with a crime.
So if you’re a firearms dealer, if you’re a private seller who’s selling a firearm to somebody, and that person is a prohibited possessor, you can be charged with a crime for making that transfer, or conducting that sale.
Also, if you deface a deadly weapon, or you’re in possession of a defaced deadly weapon, you can be charged with a crime, so what that means, is if you look here at the bottom of this firearm, you’ll see a serial number. You’ll also see it on the sides here, if you look closely.
So you’ll see that there’s a serial number associated with that, with the weapon. If you take a Dremel tool, or sand it down or scratch it off, you are now defacing a deadly weapon.
If you are in possession of a defaced deadly weapon, so if I had this firearm, and the firearm had scratched off serial numbers, I could be charged with a felony for that.
However, this is a nice, clear, perfectly legal and lawful firearm. All right, so if you are also using a deadly weapon in the commission of a felony, that’s going to be misconduct involving weapons.
If you are firing at an occupied structure, so this is actually a big statute, and it’s essentially getting at, that if you’re discharging a firearm at a structure that you know to be inhabited, that’s going to be a felony.
It’s a misconduct involving weapons. You can’t fire a gun at a residence or at a structure that’s occupied.
Think of this like a drive-by shooting, so we see this a lot in criminal syndicates, or gangs, where they’re driving by, shooting at a structure.
If that happens, you’re going to be charged with a misconduct involving weapons.
We’ll talk about what that level felony is in a different video. Also, if you are in a public location, or at a public event, something where you may have the ability to have a firearm present because it doesn’t meet any of these other exceptions, and you are asked to remove the firearm lawfully, and store it with a particular individual, according to the law, and you do not do that, you do not remove it, you can be charged with misconduct involving weapons.
You are not allowed to have a firearm, or any deadly weapon, at a polling place, at a school, at a nuclear power facility, or a hydroelectric power facility, any basic power facilities.
There are exceptions to these different locations.
If you are a law enforcement officer, or you’re there and you have special permission to have a firearm of a deadly weapon in those locations, you can do so, but generally speaking, if you’re kind of just the average citizen, can’t have firearms or any deadly weapons in those locations.
You can also not give a firearm to somebody for the purpose of committing a felony, so if you give or transfer or sell something to an individual knowing that they’re going to be committing a felony, you’re going to be charged with misconduct involving weapons.
It is another felony charge to do that, so if you know somebody’s about to commit a felony, and you hand them a firearm, they’ll charge you with misconduct involving weapons, if you are caught for that.
Also, anything involving terrorism, any weapons that are used in the promotion of terrorism, or that are involved in terrorism, or being used by terrorist groups, that is going to be a very serious, the most serious type of misconduct involving weapons, any explosives, anything like that, any improvised explosive devices, those are all going to be treated very seriously, very harshly under Arizona law.
I talk a lot about firearms in these, because they are kind of the most common, but in a different video we talk about what are other prohibited weapons, that includes a lot of explosives.
There’s IEDs, there’s other gases and Molotov cocktails and other things that are on that list, so you want to make sure that you’re considering those things when you’re reviewing all of these.
And finally, anything that’s used to promote a gang, or a criminal syndicate, as they call it, doesn’t necessarily have to be used in the commission of an offense, but if you’re doing something with weapons, selling weapons, transferring weapons, anything that they claim is furthering the interest of that criminal syndicate or that gang, they can charge you with misconduct involving weapons, whether it’s explosives, or firearm suppressors, or silencers, or any of those things.
So you can see here, there’s 16 different variations of this, the statute is quite long, it’s several pages, and so you can read through it if you want some more details. There are exceptions to these things, things like military personnel, law enforcement officers, people working in competitions, in firearms competitions and those things.
There are a lot of ways that you can maybe not fit into this very succinct list here, I tried to cram it all into one page, but if you have been charged with misconduct involving weapons, if you want to speak more about the facts of your particular case to see, maybe some of these exceptions apply to you, maybe the facts don’t exactly match the statutes, match the purpose of the statute, there’s some issues with whether they were done knowingly or recklessly, or any of those other mental states, there’s a lot that goes into it, so if you’re facing misconduct charges, give our office a call.
We offer free case evaluations.
We’re happy to sit down with you, review your specific case, make sure that you have a solid plan, and the best defense possible.
Give us a call, we look forward to speaking with you.
Thanks for watching.
Misconduct Involving Weapons is a serious felony offense in Arizona, defined by the Arizona Revised Statutes 13-3102, and covers activity that involves a person’s status to be around weapons, weapons that are prohibited, and other conduct that is considered illegal.
The statute itself is big and bulky, covering a lot of different prohibited activities and providing a number of different exceptions.
The 17 main categories of conduct that prohibited and considered to be Misconduct are the following:
- Weapon on Person / Crime: Having a deadly weapon on your person or in a vehicle when there is intent to commit some sort of crime. This crime can be a felony, a serious crime, or a violent crime.
- Failure to Notify: If stopped by a police officer and asked whether you have a weapon requires you to properly acknowledge that you have a weapon or firearm. If you do not notify the officer and the officer finds the weapon, you can be charged with misconduct involving weapons.
- Under Age 21 with Concealed Weapon: If you are under the age of 21 and have a concealed weapon on your person or in your car and the officer finds that weapon, they are likely to charge you with misconduct involving weapons. This is the least serious level offense for misconduct involving weapons.
- Manufacture/Possess/Sell/Transfer Prohibited Weapon: There are a list of weapons that are considered prohibited weapons. There are explained elsewhere on this page, but if you are found to be in possession of one of these weapons, you can be charged with misconduct involving weapons.
- Prohibited Possessor: This by far the most common type of misconduct involving weapons charges that we see at our office. This is charged when a person who is not allowed to have a weapon is found with a weapon. This is predominately the case with individuals who have been charged and convicted of a felony and have not had their rights restored. If these individuals are found to be in possession of a prohibited weapon or a deadly weapon, they are very likely to be charged with misconduct involving weapons.
- Selling to Prohibited Possessor: Selling or transferring a weapon to a prohibited possessor is also considered to be misconduct involving weapons.
- Defacing a Deadly Weapon: Firearms and other weapons may have serial numbers or other identifying information. If a gun has a serial number scratched off or sanded down, this will be considered defacing the firearm, and will be considered misconduct.
- Possession of a Defaced Deadly Weapon: Not only is it illegal to actually deface a firearm or a weapon, but it is also illegal to be in possession of a defaced weapon that was defaced by someone else.
- Using a Deadly Weapon in a Felony: If a deadly weapon is used in the commission of a felony, the individual can be charged with misconduct involving weapons in addition to the underlying felony.
- Drive-By Shooting: Discharging a firearm at an occupied structure is considered misconduct involving weapon. We see this in drive-by situations when firearms are discharged from a vehicle.
- Request to Remove: It can be considered misconduct to fail to remove a firearm when a lawful request to remove and store that firearm has been made. This is usually at public or private events where it is lawful to ask a person to remove their firearm.
- Polling Place: It is unlawful to have a firearm or a deadly weapon at a polling play in Arizona.
- School: Unless there is an exception, in Arizona it is misconduct to bring a firearm or deadly weapon onto a school campus.
- Power Facility: It is also unlawful to bring a weapon or a firearm into a power facility, like a nuclear power plant or a hydroelectric facility. There are exceptions for security staff and law enforcement.
- Give for Commission of a Felony: It is considered misconduct involving weapons to give a weapon or a firearm to a person knowing that the person is going to use the firearm in commission of a felony. This is different than committing the felony yourself. Simply knowing it will be used in the commission of a felony and giving the weapon to the individual is misconduct.
- Terrorism: Any weapons, explosives, firearms used in terrorism is considered misconduct involving weapons. This is the highest level misconduct charge.
- Gang/Criminal Syndicate: Use of weapons to further the interests of a gang or criminal syndicate is also prohibited.
This is a general overview of the statute, and there are many exceptions that are applicable through the various paragraphs of prohibited conduct.
Many of these prohibitions are charged frequently, but by far the most common type of misconduct involving weapons charges we see are when a person is prohibited possessor and is found with a weapon.
This is usually the result of a felony conviction. Many times, the person stopped and charged is originally investigated for something minor, like a traffic ticket. In these situations, the initial traffic stop can turn into a full investigation that later results in a finding of a weapon.
Who is considered a Prohibited Possessor under Arizona Misconduct Involving Weapons laws?
Video Transcript: Misconduct Involving Weapons Prohibited Possessor
Here I have a Glock 23. A fourth-generation, 40 caliber weapon. This is a real firearm.
And if I were somebody who was not allowed to have this firearm, I would be categorized as what’s called a “prohibited possessor.”
This means I’m an individual who is not allowed to own a firearm or a number of other prohibited weapons.
We’ll talk about what are prohibited weapons in a different video, but today we’re talking about specifically who is not allowed to have weapons.
If that person does have a weapon, a firearm or anything else that’s prohibited, they can be charged with a crime called “misconduct involving weapons.”
So let’s run through the statute and let’s see who is on this list, who cannot have a firearm or any other weapon.
The statute is defined under the definitions portion of the weapons portion of the statutes. It’s ARS 13-3101, and it says that there’s a different number of people who are actual prohibited possessors.
The first being anybody who, by court order, is not allowed to have a weapon.
The court has the authority to order people from being precluded from having firearms or other weapons if they are considered to be a danger to themselves or to others, or if they have some sort of major disability.
It’s a called a persistent, acute, or a grave disability that would cause them to be some sort of a danger to themselves or to others.
The court may specifically order them not to have firearms. If they’re caught with a firearm or any other weapon, they can be charged with a crime for that.
Similarly, and this is by far the most common type of misconduct involving weapons that we see, if a person has a felony conviction, meaning that person was convicted of a felony in Arizona or in any other state that Arizona will recognize.
And they are caught with a weapon, doesn’t matter if the felony’s two years old or ten years old. If they have that conviction and their rights have not been restored, meaning a judge has not given them authority to have a weapon, and they’re caught with something, they can be charged with a misconduct involving weapons violation.
Similarly, other people who are on parole, if they’re on probation, if they’re on community supervision, work furlough, any of these things.
So they’ve just been convicted of a crime, and the court has placed them on some sort of status where they’re going to be monitored, they’re going to be on probation or parole.
The court still has jurisdiction over them, they’re not allowed to have firearms or any other prohibited weapons at that time.
If they’re caught with one, they will be charged with a new crime for misconduct involving weapons.
Other individuals who cannot have firearms: undocumented or non-documented or non-immigrant aliens. So this is people who have come into the United States either unlawfully, or they’re here on some sort of legal status, lawful status, but they are not actually going to be immigrating into the United States.
They are not allowed to have firearms, at least in Arizona. Unless there’s some sort of exception to that. So, if these people do have a valid, let’s say a hunting permit, they can have a rifle for that purpose.
If they are here doing some sort of competition.
So, let’s say, we have a worldwide firearms competition. Well, of course, somebody traveling from outside of the United States here on a temporary visa, or has some sort of vacation, legal status, I’m not an immigration attorney.
But if they have some status here, and they’re doing it for competition, they’re going to be precluded from this law.
So, they’re going to be lawfully allowed to have a firearm. Even though this top part of it will have technically apply to them, there’s an exception that’s carved out. And other, there are other exceptions as well. For diplomats, uh, security forces who come with diplomats.
You can get special waivers from the Attorney General. Or the State Department of the United States Government.
Any of those people who technically are non-immigrant people in the United States, they are going to be excepted from that particular rule. Same with what’s called Rule 11.
So, in criminal law, there’s a rule that says that a person, if they’re not competent to stand trial or go through the criminal case, whether they’ve got some mental disabilities, or they’ve got some sort of disorder that requires a significant amount of treatment.
They may go through what’s called Rule 11. This is where they see a number of behavioral individuals: psychologists, psychiatrists, doctors who will determine whether that person is competent to go through the process.
If they’re incompetent, then they’re not allowed to have a firearm.
If they’re judged incompetent by the Rule 11 court or by a number of psychiatrists, and the court finds them to be incompetent such that they cannot continue to be charged with a crime, they’re not allowed to have a firearm.
And similarly, anybody who was found guilty, but insane.
So, guilty, except they’re insane. Meaning, that’s a whole topic for another video, but if they’re guilty except insane, well we don’t want that person to have firearms. That is going to be an individual who is, has been deemed to be insane.
They’ve got a mental disorder. They’ve got dysfunction, and we do not want them to have firearms either. So if anybody in this list is caught or in possession of a weapon or a firearm, they can be charged with misconduct involving weapons. In most cases, it is a felony.
It can be a Class 4 felony. And if you’ve got prior felony convictions– So if you’re in this category, you’ve got prior felony convictions and you’re charged with a new felony conviction, that’s going to elevate the category that you’re in.
Category 1 through 3. It’s going to elevate that. And any potential plea deal or sentencing is going to be substantially harsher than it might otherwise be for somebody without any felony convictions.
If you’ve been charged with a misconduct involving weapons charge and you fall under this category, our office, we deal with these very frequently.
It’s a quite common charge in Arizona.
We’d be happy to sit down with you, talk about the specifics of your case, see what types of defenses we can build, make sure that you have a solid plan moving forward. That you have the best representation possible. Give us a call.
We offer free case evaluations.
We look forward to speaking with you soon.
Thanks for watching.
A prohibited possessor is a person who under Arizona law is prohibited from being in possession of a firearm, deadly weapon or prohibited weapon.
If a person who is in one of these categories is found with a prohibited weapon, they can be charged with misconduct involving weapons. Prohibited Possessor is one of the most common ways police charge misconduct involving weapons.
There are 6 main categories of people who are considered “prohibited possessors” under Arizona law:
- Court Order: People are prohibited from possessing a deadly weapon when there is a court order that precludes them from doing so. Courts may order people to be disallowed from possessing weapons when they are considered to be a danger to themselves or others, or they have some sort of disability that constitutes a persistent, acute or grave disability.
- Felony Conviction: When a person is convicted of a felony, they lose their rights to possess firearms. In some situations, individuals with felony convictions do not know or realize that they have lost their right to have firearms until they are charged with misconduct involving weapons. Other individuals are using weapons for sporting events or hunting, unaware that they are not supposed to be in possession of any weapons. It is possible for a person who is convicted of a felony to restore their rights to possess a firearm, but until that happens and is approved by a judge, they are not allowed to be in possession of any firearms or other deadly or prohibited weapons.
- Probation / Parole / Community Supervision / Work Furlough: People who have been convicted of a crime and are currently under the jurisdiction of the court, the prosecutor’s office or the probation department are not allowed to be in possession of deadly or prohibited weapon.
- Immigrants/Aliens: Undocumented or non-immigrant aliens who are in the United States for business/pleasure or school are generally not allowed to be in possession of weapons unless there is an exception.
- Rule 11: Individuals who have gone through Rule 11 Court and determined to be incompetent cannot possess weapons.
- Guilty Except Insane: Individuals who have gone through a criminal trial and who have been found guilty except insane under the law are not capable of possessing firearms.
The most common category we see is individuals with a felony conviction being found to be in possession of a weapon, typically a firearm.
What are considered Prohibited Weapons under Misconduct Involving Weapons laws?
Video Transcript: Misconduct Involving Weapons Prohibited Weapons
There are certain rules that Arizona has in place about who can have firearms, who cannot have firearms, who can have certain weapons, what types of weapons are not allowed, and we’re going to run through those.
In a different video, we talked about different categories of people who cannot have certain weapons.
In this video, we’re going to talk specifically about the weapons themselves, what is allowed and what is not.
This is defined in the definitions portion of Title 13 for the weapons violations, ARS 13-3101. And it details a number of different types of weapons or explosives that are not allowed.
They’re prohibited. They are prohibited weapons. And so let’s run through them and see what they are. First and foremost, number one is any bombs, grenades, or rockets.
Really what they’re talking about is anything that has the ability to explode. The statute itself talks about anything that has four ounces or more of an explosive volatile, that is going to be prohibited.
So of course bombs, grenades, any rockets, you would imagine those are all very serious weapons, they can cause a lot of damage, those are going to be prohibited.
So you can’t be in possession of any of those things. Number two is anything that is designed to muzzle or to suppress the sound of a firearm, so any firearm suppressors or silencers.
It doesn’t actually use that language, the statute doesn’t, but it does say anything that’s designed or kind of manipulated into suppressing the sound of a firearm.
So if you put something on the end of this weapon that is intended to suppress or silence or really reduce the volume that you’re going to hear as a result of firing that weapon, that’s going to be prohibited.
You cannot have a weapon or anything that’s going to be suppressing a weapon.
That’s going to be a prohibited weapon under the statute. Similarly, other firearms rules. So we have what I’m calling short-barrel shotguns or rifles are not allowed.
So if you go to a weapon store, a firearm store, you can buy a full-barrel shotgun, all of those from a licensed, reputable, certified dealer are going to be within the confines of the law.
But if you buy a shotgun, take it home and modify it, and you cut the barrel off or you buy a long rifle and cut the barrel off they have to comport with these rules. If it’s shorter than that, that’s going to be a prohibited weapon under the statute.
So a shotgun barrel, it cannot be less than 18 inches.
So if you get a 22-inch shotgun and cut that off to 16 inches, it’s going to be in violation of the statute because it’s going to be shorter than 18 inches.
Same with a rifle barrel, except that’s a little shorter. You can buy a rifle but the barrel has to be 16 inches. If it’s less than 16 inches, that’s illegal.
It’s going to be considered a prohibited weapon. Or if you have any variation of a rifle or a shotgun, the total length of the entire weapon, not just the barrel, cannot be less than 26 inches.
So that means from the stock, from the shoulder, the butt, all the way up to the end of the barrel can’t be less than 26 inches.
What they’re trying to do is prevent people from sawing off the barrels to make weapons more portable or more deadly in a certain sense because you can, you don’t have to have a great distance between you and whatever it is you’re aiming at.
You can just pull a weapon out and you don’t have to deal with a kind of a big, cumbersome barrel. There’s other reasons why people saw the barrel off. But that’s the rule, has to comport with these different lengths.
Surprisingly, and this is kind of an interesting one, prohibited weapons are nunchucks.
So if you saw the Ninja Turtles, Michelangelo, the cowabunga Ninja Turtle, he had the nunchucks.
They kind of look something like this.
So these are prohibited weapons. This is a prohibited weapon under the statute.
The statute actually includes the words nunchucks.
Now it goes into a little bit more detail. It says wooden, kind of ends connected by a piece of rope or a chain, these are technically prohibited weapons under the statute.
I’m showing them on this video because I think this is part of a lawful demonstration and there is an exception we’ll get to in other videos that say that I can do that and be in possession of these for this purpose.
Moving on, anything that is a breakable container with a flammable liquid.
Think Molotov cocktails. So a Molotov cocktail is somebody takes a bottle, they fill it with some gasoline, and then they put in a piece of rag or cloth or ripped-up tee-shirt or socks or something and put it in there, light the end of that, throw it, it breaks, explodes, the gas flies everywhere and catches fire.
That is illegal. So anything that is similar to that.
It’s technically not called a Molotov cocktail in the statute, but it says anything that’s a breakable container with a flammable liquid and a wick or something resembling a wick is going to be considered a prohibited weapon.
Also, anything that I’m calling bursting gas bombs.
So you may have played around with these when you were a younger kid or maybe you do it on the weekends for fun, but if you’re taking something like dry ice and putting it in a two-liter bottle or some other container, closing the lid on there quickly, shaking it up and throwing it, and that thing expands with gas and then eventually will explode because the plastic will become so pressurized it will actually explode, that is a prohibited weapon.
That actually can be quite dangerous depending on what chemicals are used, the quantities, the different materials that are used.
So anything that is going to be similar to that, like a dry ice bomb, and the statute specifically says dry ice in there because this apparently became a problem for some legislators at some point, but anything that is very similar to that is going to be considered a bursting gas bomb.
That’s going to be considered a prohibited weapon.
Also IEDs, just like what you hear about in the news in the wars all throughout the world, improvised explosive devices, so anything that resembles an IED where’s some sort of container with explosives in it, a pipe bomb that’s rigged to a cell phone.
Of course any of those things resemble terrorism and that’s going to be a prohibited weapon.
And then there is a catch-all number nine here which is saying that anything that is used to, any kind of variety of materials that can be used or assembled to make any one of these things, number one, number six, or number eight, so anything that can be used to make a bomb, grenade, or rocket, or make something that’s a breakable container that explodes or has flammable liquid inside of it or that is used to create an IED, if you have a number of these materials in place and there was some intent or there’s kind of an inclination that you’re going to be using these things to create one of those, all of those things are together are going to be considered prohibited weapons because you can assemble them to create something that’s a prohibited weapon.
So it’s kind of a catch-all down there. So these are the prohibited weapons that are covered under the statute.
If you are a prohibited possessor or if you’re in possession of one of these weapons and you are caught with it you can be charged with a felony.
And they can be quite serious depending on where you fall on this list. If you’re facing a misconduct involving weapons charge and you want to speak with our team about it give us a call.
We offer free case evaluations. We’ll be able to review the specific facts of your case, see where the police initiated the investigation, see where they went wrong, see what we can do to build the best defense possible to make sure that you have the best outcome that we’re able to achieve.
Give us a call.
We look forward to speaking with you.
Thanks for watching.
In Arizona, some weapons are outright prohibited.
This means that if you are found in possession of one of the following weapons, you can be charged with misconduct involving weapons. In some situations, there are exceptions that allow a person to be in possession of one of these items, but they are usually considered on a case-by-case basis.
Under ARS 13-3101, the definitions section of the weapons statutes, the following weapons are not allowed in Arizona:
- Bombs, grenades or rockets: Any type of device that explodes with explosive, incendiary or poisonous materials that exceed 4 ounces.
- Suppressors or Silencers: Any equipment used to suppress the sound of a firearm is illegal. It does not necessarily have to be a specifically manufactured suppressor. Any equipment or device that serves the save function is prohibited.
- Fully-Automatic Firearms: In Arizona, fully automatic firearms are not allowed without special licenses or permits. Fully-automatic means one press of the trigger results in multiple rounds being fired. Semi-automatic firearms are allowed.
- Nunchakus: Also known as Nunchuks, these are weapons that are two pieces of material connected by a rope or chain and used for the purposes of weapons. There are exceptions when possession of nunchuks are allowed, as for lawful demonstrations.
- Molotov Cocktails: These are breakable containers with flammable liquids and a wick, mean to explode or burst into flame upon breaking of the containers.
- Bursting Gas Bombs: Think dry-ice bombs, where a container is filled with expanding chemicals or other components such that the container itself cannot sustain the pressure and explodes.
- I.E.D.’s: Improvised Explosive Devices like those seen in terror attacks are prohibited.
- Combinations: Any combination of materials that can be used to make bombs, molotov cocktails or I.E.D.s can be considered to be prohibited as well, given that there is some indication they are being used to manufacture to prohibited weapons themselves.
What are the penalties for Misconduct Involving Weapons convictions in Arizona?
Video Transcript: Penalties for Misconduct Involving Weapons
In other videos, we’ve spoken about a class of people who cannot have access to any dangerous or prohibited weapons.
They’re called prohibited possessors.
We’ve also spoken about what types of weaponry or explosives are prohibited. So, what is considered a prohibited weapon?
We’ve also spoken about what type of conduct is prohibited. So, where can you not bring prohibited weapons or deadly weapons?
To schools, polling places, power plants, those things.
Today, we’re talking about the penalties for misconduct involving weapons based upon those different things. Let’s run through the statute.
It is, ARS 13-3102, misconduct involving weapons. The penalties are defined near the end of the statute, let’s run through them.
As a reminder, in Arizona, we have felony offenses and misdemeanor offenses.
Felonies are much more serious. At the top, the most serious level of felony’s a class two, at the bottom is a class six. Beneath that, we have what are called misdemeanors.
Misdemeanors, the most serious misdemeanor is a class one, and a least serious is a class three.
So you have ones, twos and threes, just like in felonies, you have two through six. I have them broken down this way, so the most serious are at the top, the least serious are at the bottom.
So, under the statute, for certain levels of crimes or possessors or weapons or conduct, where do they fall on that scale?
At the top, as you can imagine, the most serious is any misconduct involving weapons that’s related to terrorism.
So if you look at the statute and you see that terrorism, it’s going to be a class two felony. It’s the most serious.
Obviously, anything involving explosives or firearms or any weaponry that’s going to be used to promote terrorism, is going to be considered very seriously penalized under Arizona law.
The next level is for these three different types of violations, so anything that’s gang related, anything that involves a person giving a weapon or giving explosives or firearms to an individual knowing that they’re going to go commit a felony, or anything that involves discharging a weapon at a structure.
Those are all going to be class three felonies, so drive-by shootings or if you’re actually transferring a weapon to somebody who’s going to go commit a felony offense, those are going to be the next level down. So, a class three. The most common, by far, are these that are in class four categories.
So, possession of a prohibited weapon. So, if you have a rocket or a grenade, or you have a sawed-off shotgun, you have a firearm that has been modified to be illegal and you’re in possession of that, that’s going to be a class four.
This is, hands down, the most common type of misconduct that we see, but it’s somebody who is a prohibited possessor being in possession of a weapon.
Doesn’t have to be a prohibited weapon, it can be a weapon that is just a standard firearm like this but if they have a felony conviction, and they’re not allowed to have any weapons whatsoever?
They’re considered a prohibited possessor, so if they have possession of that, that’s going to be a class four felony.
Also, if a weapon is used in the commission of another felony, so, a breaking and entering, a burglary, or an aggravated domestic violence case or an aggravated assault, if they use a prohibited weapon, that’s going to be considered a class four felony.
Or if it’s used in a criminal syndicate or a gang, anything that’s being used by any gang activity or criminal syndicate activity, it’s going to be a class four felony. If you are selling or transferring a weapon to a prohibited possessor, so, not being used to commit a felony, but you’re just giving them a weapon.
Whether it’s explosives or firearms, that’s going to make it a class six felony. If the individual has concealed a firearm in their car and they’re committing a crime, they’re in the process of committing a dangerous crime, a violent crime or a felony, that’s also going to be a class six felony, if the firearm’s in the vehicle or on their person.
Or, if you have possession of a defaced firearm, so let’s say, for example, we saw this here in one of my other videos about this serial number.
If that serial number is scratched off or drilled off and rubbed off, and you’re in possession of a defaced firearm, that would be a class six felony, or if you are actually the person who did the defacing, that’s going to be a class six felony as well.
So those are all the felony offenses. Any of these are all misdemeanor offenses, so there’s still criminal charges, but they’re lower level offenses.
So, failure to notify the police officer. So, if you’re stopped for a speeding ticket and a police officer asks you, “Do you have a weapon in your car?”
You fail to disclose that, fail to notify the officer of that and the officer finds it because you had a driving on a suspended license charge, they impound your car, they find the weapon in there and you didn’t tell them?
They’re going to charge you with a crime, it’s called misconduct involving weapons, failure to notify. That’s a class one misdemeanor. Same with failing to remove the firearm if you’re asked to do so.
There are certain situations where, if you go to a public event or an establishment and you’re allowed to have a firearm but you’re asked to remove the firearm, there’s a reasonable request to do so, it’s a lawful request and you fail to do that, they can charge you with a crime for that.
There’s a lot more to that statute, it’s not common, but if you see that, you’re going to want to make sure that you or your lawyer definitely review that section of the statutes.
Similarly, you cannot have a firearm at a polling place or a school. If you do, they’re going to charge you with a class one misdemeanor.
Again, there are certain exceptions for that. If you’re a law enforcement officer, military, if you’ve got some sort of special privilege to have it in there, this is not going to apply to you.
But if you have a firearm at a polling place or anything like that, they can charge you with a crime for that.
The lowest level that we see is if you’re under the age of 21 and you have a firearm in your car or you have a deadly weapon in your car, whatever that is, and it’s concealed and an officer finds that, then they can charge you with a class three misdemeanor.
So, class three is the lowest, remember that. Most, like I said, that we see that are misconduct involving weapons charge are the class four.
By far, it’s the most common. We see prohibited possessors, hands down, it’s the most common offense. People don’t realize that they have a felony conviction.
They may have thought that their rights have been restored, they may be a person who is a convicted felon, but they may be just in close proximity to somebody who is not a convicted felon who has a firearm. So, we see that a lot.
People will be stopped, there’ll be a firearm in the back of the car, the driver of the car is an individual who doesn’t have a felony conviction but the passenger does, police will say, “Okay, well he was in possession “constructively of that weapon.”
And they’ll charge him with a misconduct involving weapons. It’s a class four felony. Anything that’s in the felony range is certainly serious. Anything that’s a misdemeanor is also serious, depending on your background.
You want to make sure that you’re not convicted of any crimes, make sure that your record is kept as clean and clear as possible, and certainly make sure that you’re not going to jail or prison and being locked up based upon your record.
So, if you’ve been charged with misconduct involving weapons, if you’re facing criminal charges, you absolutely want to make sure that you at least consult with an attorney to talk about your case and see what the facts are. See if there’s a solid defense that we can employ that’s going to make sure that you’re not convicted of any of these felonies.
If you’re convicted of a felony, you have to consider where you’re going to fall on the sentencing chart. It can be complicated, you can have aggravators, you can have mitigators.
So definitely give us a call, we offer free case evaluations, we’re happy to sit down with you, run through your specific case and make sure you have a good plan moving forward.
We look forward to speaking with you soon, thanks for watching.
Here is how the most common types of Misconduct Involving Weapons are classified under Arizona law:
Class 2 Felony (most serious)
- Terrorism involving weapons
Class 3 Felony
- Gang related activity involving weapons
- Giving a person a weapon to commit a felony
- Drive-by shootings
Class 4 Felony
- Being a Prohibited Possessor with a Deadly Weapon **MOST COMMON
- Possessing a Prohibited Weapon
- Using a weapon in committing a felony
- Using a weapon as part or in furtherance of a criminal syndicate or gang
Class 6 Felony
- Selling or transferring a weapon to a prohibited possessor
- Having a weapon concealed in car while committing a crime
- Defacing or possessing a defaced weapon
Class 1 Misdemeanor
- Failure to notify police of a weapon
- Failure to remove a weapon when lawfully asked to do so
- Bringing a weapon to a school or polling place
Class 3 Misdemeanor (least serious)
- Under Age of 21 with a Concealed Weapon
What are some defenses to Misconduct Involving Weapons?
Being charged with misconduct involving weapons, or any felony for that matter, may seem hopeless. Fortunately, that is not the case. There are many defenses that are available for M.I.W. charges, and we will cover them here, focusing on (1) Knowledge (2) Possession (3) Definition of Weapon (4) Statutory Exclusions and (5) Evidentiary Challenges.
The first and most common challenge to misconduct involving weapons charges is regarding a person’s knowledge of the existence or proximity of the weapon. This is applicable to the most common type of misconduct involving weapons charge, being a prohibited possessor who is not allowed to be in possession of a weapon.
The question becomes whether the person being charged knew about the existence of the weapon.
In many situations, we see prohibited possessors be near a weapon, but have no idea it existed.
For example, being in a car with someone else who had a weapon under the seat. In these cases, the police may charge an individual for having a weapon while being a prohibited possessor, even though the person had no knowledge of the existence of the weapon!
The police may claim that the person knew it was there, while the person being charged claims otherwise. In these situations, it is important to do a thorough legal review of the case, and consider the various interpretations of the incident.
For example, did the person being charged admit or acknowledge that they knew of the weapon’s existence or the possibility that the weapon existed? Was it a clear and unambiguous admission or did the police twist their words and manipulate what they call an admission? It is not always cut and dry.
If there is reasonable doubt as to whether the person being charged in fact knew of the existence of the weapon, it can be very difficult for a jury to find that person guilty.
Similarly, sometimes a person may know about the existence of a weapon, but may not actually be in possession of the weapon. Just because a weapon exists or is in the general vicinity of a person does not mean that person is in actual possession of the weapon.
The question becomes is there sufficient nexus between the weapon and the person prohibited from being in possession of the weapon. Under Arizona law, “possession” is defined by a person’s ability to exercise dominion or control over the weapon.
An example we have seen is when the police enter a person’s home who is a prohibited possessor, and the individual’s roommate has weapons.
The person being charged with being in possession of a weapon may have known of the weapon’s existence, but did not actually have any dominion or control over the weapon because it belonged to another individual and was under their control.
Sometimes individuals are charged with misconduct involving weapons for possessing prohibited weapons or materials to make prohibited weapons, like explosives, when they are not in fact weapons but instead have other purposes.
Explosives, for example, have many other legitimate uses in construction, mining, demolition, etc.
If they can be defined to be outside the scope of the prohibited weapons statute, they may not be considered a prohibited weapon and therefore being in possession of them may not constitute misconduct.
The misconduct involving weapons statutes, combined with the definitions sections, contain a lot of exceptions to the generally prohibited rules.
It is important to review a person’s specific situation and the facts surrounding the allegations to determine if any of the exceptions apply.
In many situations, police officers are not reading the fine print of the statutory authorities, as that is not their job. The prosecutor’s office is responsible for reviewing the facts of the case and ensuring there is enough evidence to support prosecution.
In some cases, they can overlook the statutory exclusions that would take otherwise unlawful conduct outside the scope of the misconduct involving weapons statutes.
It is also important to remember that it is the government’s job to prove their case, not the defense’s job to disprove the case. In many situations, this means that they need to connect the weapon to the possessor through evidentiary and forensic methods, including:
- Chemical testing of the weapon or weapon residue
- Finger analysis and connection between the accused and the weapon
- DNA testing to show connection between the person and the weapon
- Gunshot residue off a person’s hand to show firing of the weapon
- Photo Line-ups to properly identify the individual
- Other interrogatory problems, such as Miranda Violations, coercion or duress
There are many other defenses available for misconduct involving weapons that depends on the specific facts of your case. To speak with our team and schedule a free case evaluation, please contact our office today.