Defending Weapons Crime Charges in Virginia
In 2020, Virginia lawmakers radically transformed the state from one of the most gun owner-friendly jurisdictions in the country to one of the most gun owner-unfriendly states. Some of these changes were well publicized, while others, such as the closing of the Charleston loophole that restricted gun owner background checks, were under the radar. As a result, you may have an illegal firearm in your car and not know it.
Ignorance of the law is no excuse. However, in some cases, ignorance of the law creates juror sympathy, especially if the defendant received inaccurate professional advice. Potential juror sympathy makes it easier for a Leesburg criminal defense lawyer to successfully resolve illegal gun possession and other matters. This successful resolution could be a pela to a lesser included offense or a complete dismissal of charges.
Procedural Defenses
A compelling procedural defense often prompts Loudoun County judges to throw criminal cases out of court. These matters usually cannot move forward if a Leesburg criminal defense lawyer highlights a serious Fourth or Fifth Amendment violation.
Officers cannot search private property for contraband, or seize any contraband they find, unless they comply with the Fourth Amendment’s search warrant requirement.
Many weapons possession cases involve traffic stops. In these situations, if they suspect the defendant possesses contraband or they see it, officers don’t bother to obtain warrants. Instead, they usually rely on the consent or plain view exceptions.
Consent is an affirmative and voluntary act. “Yes” is consent. Anything less than “yes” is arguably not consent. Virginia law narrowly defines this word in sexual battery statutes. Furthermore, defendants cannot drug or dupe victims into consent, and police officers cannot bully owners into consent.
Under the plain view doctrine, officers don’t have to ignore contraband they see in plain view, assuming they can identify the object and the traffic stop or other detention was lawful. A pistol grip could be part of an illegal firearm, a legal firearm, or a non-firearm, like an air pistol. Furthermore, plain view-seized items are only admissible if officers had reasonable suspicion to detain the defendant and probable cause to conduct the investigation.
If the judge excludes the weapon, the state cannot prove the defendant possessed it in court, and the case falls apart. These exclusions are permanent. Prosecutors can collect additional evidence if needed, but they can’t change mistakes officers made in the past.
Lack of Evidence
An illegal firearm, by itself, doesn’t establish all the elements of a criminal possession offense in Virginia. The state must prove:
- Possession,
- Knowledge, and
- Control.
“Possession” has a specific meaning in this context. People can own firearms or other items and not possess them, under Virginia’s criminal laws.
Knowledge and control might be even more problematic. Assume Phil is in the rear passenger side seat when an officer detains Mike, the driver. The officer finds a pistol under Mike’s seat and arrests everyone in the car for illegal possession.
The charges against Phil might not hold up in court. Unless he knew Mike carried a gun in the past, he probably didn’t know about that particular gun. The control element is even harder to prove. Phil couldn’t reach over and grab the pistol.
Count on a Dedicated Loudoun County Lawyer
There’s a big difference between an arrest and a conviction in criminal law. For a free consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Virtual, after-hours, and home visits are available.
