Felony Firearm Possession Defense

Summary

In North Dakota, possession is defined as having direct physical control over an item. The state must prove actual or constructive possession to charge you. Being in the same vehicle does not automatically mean possession. Defense strategies include asserting lack of knowledge, emphasizing a negative gun residue test, and highlighting the owners confession. Multiple individuals can be charged if control is proven. A prior felony doesnt automatically make it a federal crime, but being a felon in possession can be a federal offense if the firearm was involved in interstate commerce. Most firearms are considered to have been involved in interstate commerce if manufactured in one state and transported to another. Consult a local attorney for tailored advice.

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I live in North Dakota. I was passenger in a vehicle in which a handgun went off while driving down the interstate. The gun belonged to the driver of the vehicle and was registered to his friend. He claimed the gun when we were pulled over following the gunshot. The passenger window was shattered. I refused to speak with arresting officers and also refused a gun powder residue test until they could legally compel me 2 days later. It came back negative. I am currently being charged with a felony unlawful possession of a firearm. Can the state prove possession simply because I was in the vehicle?
Hi ****, in North Dakota, the law defines possession as "having direct physical control over a thing at a given time". There are two types of possession:
*. Actual possession: The firearm is in your hand, in a container in your hand, or so close as to be within ready reach and is under your control.
*. Constructive possession: You are aware of the firearm and you have the ability and intent to control it.
The state must prove one of these types of possession to charge you with unlawful possession. Being in the same vehicle does not automatically mean possession.
What is my best defense strategy
A potential defense strategy could be:
*. Asserting lack of knowledge about the gun's presence.
*. Emphasizing your negative gun residue test.
*. Highlighting the owner's confession.
Remember, it's crucial to work with a local attorney to develop your defense strategy. They will know local laws and court procedures.
Is there any way to get this case thrown out?
A potential way to get the case dismissed may involve:
*. Filing a motion to dismiss due to lack of evidence.
*. Asserting your Fourth Amendment rights if the search was unlawful.
*. Highlighting your negative gun residue test and lack of control over the firearm.
Remember, consult with a local attorney for advice tailored to your case.
Why would my court appointed attorney tell me that they have proved probable cause
Your court-appointed attorney may have said this because there's enough evidence for a reasonable person to believe that a crime was committed - this is the definition of probable cause. However, proving probable cause doesn't mean you're guilty. It allows the case to proceed.
Can the state of ND convict both the driver and I with unlawful possession of a fire arm?
In North Dakota, it's possible for multiple individuals to be charged with possession if the state can prove each individual had control over, or the ability and intent to control, the firearm. However, each case is unique and depends on the evidence presented.
If I was convicted of a felony over 6 years ago, does that make this a federal crime?
Being convicted of a felony over 6 years ago doesn't automatically make your current charge a federal crime. Federal jurisdiction typically applies when the crime crosses state lines or involves federal law. However, being a felon in possession of a firearm can be a federal offense.
When is being a felon in possession of a firearm a federal offense?
Being a felon in possession of a firearm becomes a federal offense under the Federal Gun Control Act of * if:
*. The firearm has moved in interstate or foreign commerce at any point, which applies to most firearms.
*. The person is prohibited from possessing firearms due to a felony conviction.
*. The person knowingly possessed the firearm.
Do all three need to apply?
No, not all three conditions need to apply for it to be a federal offense. As long as the firearm has been in interstate or foreign commerce, and the person knowingly possessed it while being prohibited due to a felony conviction, it could be a federal offense.
How would I know if a gun has been involved in interstate commerce?
A firearm is considered to have been involved in interstate commerce if it was manufactured in one state and then transported to another. This can be verified by checking the firearm's serial number and manufacturing information, which can usually be found on the gun itself or through its manufacturer.
Does every state manufacturer guns?
No, not every state manufactures guns. The manufacture of firearms is concentrated in states with more lenient gun laws and a history of firearms manufacturing like Texas, Florida, and the Carolinas. You can typically find the place of manufacture on the firearm itself.
So most guns, but nature of simply being manufactured in another state are already technically involved in interstate commerce?
Yes, by the nature of being manufactured in one state and sold or transported to another, most firearms are technically involved in interstate commerce. This is a broad interpretation that allows federal jurisdiction in many firearm cases.
That's ridiculous
Yes, it can seem broad. This interpretation is mainly to ensure federal laws can be applied to a wide variety of situations. If you have more questions or need further assistance, feel free to ask.
Does North Dakota manufacturer guns
Yes, there are gun manufacturers in North Dakota. However, the presence of manufacturers in the state doesn't necessarily mean that all firearms in North Dakota are locally produced. The firearm in your case may still have been involved in interstate commerce.