On the next classic episode of COPS, a citizen is driving on a California roadside when a local law enforcement officer pulls them over for a minor traffic violation. When the officer approaches the vehicle, he notices a strong odor of alcohol and asks if there is anything in the vehicle that might be illegal. The driver seems to be under the influence and the officer has probable cause to search the vehicle and discovers a loaded firearm under the passenger seat. What are the possible legal defenses for the discovery of a loaded firearm in the State of California:
Lack of knowledge - If a firearm is found in your vehicle without your knowledge, you cannot legally be held liable for having it. This could be the case, for example, if the firearm was stashed in your trunk before you got into the vehicle.
You have the correct license - In cases where you have a legal and valid concealed carry license, you cannot be charged with this crime.
Illegal search and seizure - If law enforcement conduct an illegal search and subsequent seizure of the firearm that is found in the vehicle, charges may be dismissed.
In the event none of the above apply and you are charged with possession of a firearm in a motor vehicle and subsequently convicted, there are a myriad of penalties you might face. They are as follows:
Thai is generally charged as a misdemeanor offense; however, in the State of California, it is also a “wobbler” offense and there may be aggravating factors that allow for an elevation to a felony charge resulting in a prison sentence of up to three years.
As part of the legislative action, section 12031 was enacted, prohibiting the carrying of a loaded firearm on the person or in a vehicle "while in any public place or on any public street ...." (Subd. (a).) Subdivision (e) fn. 2 was included "for the purpose of enforcing this section" and authorizes peace officers, "[i]n order to determine whether a firearm is loaded" to conduct an examination of a firearm carried on the person or in a vehicle.
In the same statute, sections 171c and 171d of the Penal Code were enacted, prohibiting the carrying of loaded firearms in certain public buildings, in state universities and colleges, and in the residences or on the residential grounds of certain state officials. Section 171e was also enacted and made applicable to the enforcement of sections 171c and 171d. It contains language almost identical with that of subdivision (e) of section 12031, authorizing peace officers to examine any firearm carried on the person or in a vehicle in the locations prohibited by sections 171c and 171d, to determine whether it is loaded. It may therefore be seen that authority to examine any firearm carried by anyone in a prohibited location on his person or in a vehicle, in order to determine whether it is loaded, was deemed by the Legislature integral to the enforcement of all three sections.
Regardless of the classification of the offense, it is important that you seek the assistance of competent legal counsel to help you best understand your legal defense while identifying an outcome that best minimizes your risk. We here at the H Law Group patiently await your call.