FIREARM POSSESSION BY PERSON ADDICTED TO A NARCOTIC DRUG

Possession of Firearm by drug-addicted in California

Under California law, it is illegal for a person addicted to a narcotic drug to possess a weapon. No person addicted to a drug may purchase, receive, own or possess a firearm.
But what does “possession” of a firearm mean? Who is defined a person addicted to drugs? Is there any exception from this regulation? Below, we will introduce you the main elements of the California Gun Laws realted to the firearm possession by a drug addicted. Additionally, in the resources of our site you can find detailed information about different kind of firearm offenses in California.

1. Restrictions in California Gun Laws
2. Firearm Possession Prohibitions
3. Firearm Possession by Drug Addicted
4. Can I Use Possess Firearm if I am Drug Addicted? / Defenses to Charges with Possession a Firearm by a Drug Addicted
a) Possession of Firearm by Person Prohibited by Statute: Self-Defense
b) Possession of Firearm by Person Prohibited by Statute: Momentary Possession
5. Related Articles
We are ready to provide answers to your initial questions concerning firearm charges in California for free. You may file your request online, by telephone or by mail. 818-990-0418

1. Prohibitions from Firearm Possession in California Law

In California, there are certain classes of persons who are prohibited from possessing a firearm:
1. Felons. Any person who is convicted of a crime (violent or not) and this crime is punished by prison time more than one (1) year is considered to be a felon.
2. Persons convicted of certain misdemeanors.
3. Persons addicted to a narcotic drug.

Now, let’s take a closer look at the firearm possession by a person who is addicted to a narcotic drug.

2. Firearm Possession by Drug Addicted
In California, the act of owing, purchasing, receiving or possessing a firearm by an addicted to the use of a narcotic drug constitutes a crime and her following acts constitute a crime.
Person is addicted to a narcotic, if he or she is emotionally and physically dependent on that narcotic and has developed a tolerance to its effects. In its turn, it means that the person needs drugs in more doses and this person can be out of control.

A felon in possession of a firearm can face harsh penalties. Only this crime under certain circumstances can bring a felon conviction and a new imprisonment. And it will increase the exposure of prison time that the defendant is facing.

3. What Elements of the Violation of the California Firearm Law by a Felon the Prosecution Must Prove?
The prosecutor must prove the following elements of the crime in order to find t defendant guilty:
1. The defendant was in possession a firearm, notwithstanding the fact that he or she is a felon;
2. The defendant owned, possessed, bought or received a firearm;
3. The defendant knew of the presence of the firearm.

For the prosecution to prove that you “owned, possessed, bought or received” a firearm, it must be proved that you did in fact possess a firearm.

Let’s try to understand the circumstances when a person is considered to be addicted to drugs. In order to establish this fact, it should be proven that:
1. The person has become emotionally dependent on the drug in the sense that he or she experiences a compulsive need to continue its use;
2. The person has developed a tolerance to the drug’s effects and therefore requires larger and more potent doses;
3. The person has become physically dependent, suffering withdrawal symptoms if he or she is deprived of the drug.

If the prosecution proves the possession of a firearm, the defendant can argue that it was lawful. In this case defendant must prove that:
1. he or she found the firearm or took the firearm from a person who was committing a crime against the defendant;
2. he or she possessed the firearm no longer than was necessary to deliver or transport the firearm to a law enforcement agency for that agency to dispose of the weapon
3. If the defendant was transporting the firearm to a law enforcement agency, the defendant gave prior notice to the law enforcement agency that he or she would be delivering a firearm to the agency for disposal.

The defendant has the burden of proving of each element of this defense. It should be mentioned that the proof has not to be beyond any reasonable doubt, it a standard proof procedure. According to this, it should be established that it is more likely than not to be true.

4. Can a Person Addicted to a Narcotic Drug Possess a Firearm?

a) Possession of Firearm by Person Prohibited by Statute: Self-Defense
Under California Penal Code 12021(h) PC, if the person prohibited from possessing a firearm possesses it under justifiable conditions. In particular, it is allowed to possess a firearm in self-defense.

The defendant cannot be found guilty of unlawful possession of a firearm if he or she temporarily possessed the firearm in self-defense or defense of another). In order to establish it, the defendant must prove the following facts:

1. The defendant reasonably believed that he/she or someone else was in imminent danger of suffering significant or substantial physical injury;
2. It was reasonably believed that the immediate use of force was necessary to defend against that danger;
3. The defendant did not plan and did not prepare on his or her part a firearm became available;
4. The possession of the firearm was temporarily (for a period no longer than was necessary or reasonably appeared to have been necessary for self-defense);
5. There were not any other available means of avoiding the danger of injury;
6. The defendant’s use of the firearm was reasonable under the circumstances.

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, self-defense or defense of another was not lawful.
Example: Ashley, who was on summary probation for possession of marijuana, was living in a room where the homeowner had a firearm. Once, the homeowner came drunk and tried to kill Ashley. They starting fighting and the firearm shouted. The homeowner died. Ashley is not guilty in this case because his conduct corresponds to the requirements of self-defense under California Gun Law.

The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not temporarily possess the firearm in self-defense or defense of another. If this requirement is not met, the defendant must be found not guilty of this crime.

b) Possession of Firearm by Person Prohibited by Statute: Momentary Possession

If the defendant possessed a firearm, it was not unlawful if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that:

1. Possession of the firearm was for a momentary or transitory period;
2. Possession of the firearm aimed at abandoning, disposing or destroying it,
3. There was no intention to prevent law enforcement officials from seizing the firearm.
Example: John, addicted to a Narcotic Drug, took James’ car. There was a firearm under the seat of the car. The police stopped the car and found the firearm. Nonetheless, it was established that it was not John’s car and the firearm belonged to the owner of the vehicle. Then, John is not guilty because had no knowledge of the existence of the firearm.

5. Related Articles
Firearm Offenses
Gang-Related Firearm Enhancement
Possession of a Firearm without a Permit
Felony Assault with a Deadly Weapon
Possession of Firearm by Person Prohibited Due to Conviction – No Stipulation to Conviction
California’s Law against the Unlicensed Sale of Firearms

 

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