firearm possession virginia

Richmond VA Felony Gun Possession Lawyer, Sara Gaborik

June 14th 2014

By Sara Gaborik 

RICHMOND CRIMINAL LAWYER SARA GABORIK AGGRESSIVELY DEFENDS CLIENTS FACING FIREARM CHARGES 

Do you need a Richmond VA Firearm Attorney? If you are facing Virginia criminal firearm charges, a conviction could lead to mandatory jail time and substantial fines. Not all Richmond criminal lawyers handle such cases. Sara Gaborik handles firearm charges regularly and offers the experience, aggressive advocacy, skills, and knowledge you need to resolve these charges as favorably as possible. Ms. Gaborik defends those charged with weapon violations in Richmond, Henrico, Chesterfield, Essex, Prince George, and the surrounding areas.

In Virginia, mere possession of a firearm can subject certain individuals to significant jail time. The use of a firearm in the commission of a crime carries substantially harsher penalties. Depending on the circumstances of your case, an experienced criminal attorney may be able to negotiate a more favorable outcome by getting a defendant’s charges reduced to a lower classification with reduced penalties.

Call Sara Gaborik for a consultation at (804) 334-4351 or (804) 780-3080.

IN VIRGINIA, ILLEGAL FIREARM POSSESSION OR TRANSPORT CARRIES HARSH PENALTIES  

Virginia bars certain people from purchasing or possessing a firearm. If you try to circumvent the firearm laws, you face significant penalties including substantial jail time. A criminal lawyer with experience in firearm cases is essential to present the most effective defense possible.

Virginia generally does not require a permit to own a firearm. But under Virginia Code § 18.2-308.2:2 , a prospective gun purchaser must provide specific information, on a Department of State Police form, as a precondition to buying a firearm from a dealer.

On the form, the applicant must provide specific identifying information. The applicant must also answer a series of questions including whether he or she:

  • Has been convicted of a felony;
  • Has been found guilty or adjudicated delinquent as a juvenile of fourteen years of age or older where, at the time the offense was committed, the violation would have been a felony had an adult committed it;
  • Is subject to a court order restraining him or her from harassing, stalking, or threatening his or her child, intimate partner, or child of that partner;
  • Is subject to a protective order under Virginia Code § 18.2-308.1:4;
  • Has ever been acquitted by reason of insanity and prohibited from purchasing, possessing, or transporting a firearm under Virginia Code § 18.2-308.1:1 or a very similar law in another jurisdiction;
  • Has been adjudicated legally incompetent, mentally incapacitated, or incapacitated and therefore prohibited from purchasing a firearm under Virginia Code § 18.2-308.1:2 or another jurisdiction’s similar law; or
  • Has been involuntarily ordered to undergo outpatient mental health treatment or has been involuntarily admitted to an inpatient mental health facility and therefore prohibited from purchasing a firearm pursuant to Virginia Code § 18.2-308.1:3.

If you try to obtain a firearm and intentionally make a materially false statement on one of these forms, you will be charged with a Class 5 felony.

Each of the conditions listed above generally disqualifies one from renting, trading, buying, transporting, or otherwise obtaining a weapon. If you are subject to any of these conditions and are caught with a firearm, you face felony charges.

Virginia Code § 18.2-308.2 generally prohibits possession or transportation of firearms, firearms ammunition, stun weapons, explosives, or concealed weapons by convicted felons. This includes those who were adjudicated delinquent as juveniles of fourteen years of age or older who committed murder, kidnapping, rape, or robbery by threat or presentation of a firearm. It also includes someone who has not yet reached the age of twenty nine and was adjudicated delinquent as a juvenile of fourteen years of age or older for committing an offense that would have been a felony had that person been an adult at the time.

Violating this law carries a mandatory five-year term of imprisonment. One who has a previous conviction of any other felony within the prior ten years faces a mandatory minimum term of two years to be served consecutively.

Certain drug offenders receiving two misdemeanor convictions within a thirty-six consecutive month period will be ineligible to purchase or transport a handgun under Virginia Code § 18.2-308.1:5. But following five years from the date of the second conviction without any further convictions for such offenses, eligibility will be restored.

Penalties apply not only to those who attempt to obtain firearms illegally but to those who attempt to arrange firearm transfers to others. Attempting to convince a dealer to transfer or convey a firearm to someone other than the actual buyer constitutes a Class 6 felony. This includes acquiring a firearm to give to someone else, which is known as a straw purchase.

If you buy a firearm for someone else, and you know that person would be barred from getting one from a dealer, you face a Class 4 felony with mandatory jail time of up to one year. If more than one firearm is involved, that jail time escalates to a minimum term of five years. These rules do not apply if you are buying a firearm for lawful use by your child, grandchild, or certain others over whom you have legal guardianship if the only reason for their ineligibility is age.

If you are ineligible to buy, receive or possess a firearm in Virginia and you solicit or otherwise try to get someone to buy one for you, you are subject to a Class 4 felony with a mandatory five-year term of imprisonment.

Jail terms for these violations generally are served consecutively with any jail time imposed for any other related sentence. So, for example, if you lie on a form and obtain a firearm illegally and use it in a robbery, your jail time for the firearm possession will be added to the time you have to serve for the robbery. You will also face additional penalties for perjury because you lied on the form. An attorney who handles firearm cases can prepare a tailored defense and knows the arguments that might improve the chances of obtaining some leeway in sentencing.

VIRGINIA PROHIBITS OR RESTRICTS CERTAIN WEAPONS AND EQUIPMENT

Virginia has several laws prohibiting or restricting the possession or use of certain weapons and weapons-related equipment. If you face charges under any of these laws, you need to consult an experienced attorney.

Spring guns

Virginia Code § 18.2-281 prohibits setting a spring gun or other deadly weapon so that it is activated or discharged by someone touching it or touching a string, wire, spring or other mechanism designed to make the weapon fire remotely. Violation of this section is a Class 6 felony.

Machine guns

Virginia Code § 18.2-289 makes using a machine gun in the course of a crime or attempted crime of violence a Class 2 felony, which is punishable by imprisonment of twenty years to life plus fines up to $100,000 under Virginia Code § 18.2-10. Using a machine gun for an offensive or aggressive purpose is a Class 4 felony under Virginia Code § 18.2-290 which carries penalties of two to ten years in prison and up to $100,000 in fines. These are severe penalties. If you are facing charges under any of these statutes, having an attorney with experience in firearm cases is essential.

All machine guns in Virginia must be registered with the Department of State Police within twenty four hours of acquisition or modification. Virginia Code § 18.2-295. If a peace offer demands to see the registration certificate and you cannot provide it, you will be charged with a Class 3 misdemeanor and your weapon can be seized. If you transfer the weapon, you must provide all pertinent information to the Commonwealth. Failure to do so is a Class 3 misdemeanor.

Sawed-off shotguns and rifles

In Virginia, possession of a ‘sawed-off’ shotgun or rifle or use of one in a crime or attempted crime is a Class 2 felony. Virginia Code § 18.2-300. Virginia Code § 18.2-303.1 provides for certain exceptions. Manufacturers must keep records of all sawed-off shotguns, sawed-off rifles, and machine guns they manufacture or handle. Virginia Code § 18.2-304.

Virginia Code § 18.2-308.8 prohibits the import, sale, possession or transfer of the Striker 12, a shotgun also known as the Armsel Striker, the Sentinel Arms Co. Striker-12, or “streetsweeper,” and similar semi-automatic folding stock shotguns with spring tension drum magazine with a capacity of twelve shotgun shells. Violation of this section is a Class 6 felony.

Plastic firearms

Virginia Code § 18.2-308.5 prohibits the possession, sale or manufacture any of firearm with less than 3.7 ounces of electromagnetically detectable metal in the barrel, slide, cylinder, frame or receiver that does not generate an image that accurately depicts its shape on detection machines like those used at airports. This restriction protects the public from malicious individuals who seek to deceive metal detectors in airports, schools, court buildings, and other protected areas. Violating this law is a Class 5 felony.

High capacity magazines, silencers, folding stocks

In certain high population areas of Virginia, including Richmond and Henrico, Virginia Code § 18.2-287.4 makes it unlawful to carry a loaded semi-automatic center-fire rifle or pistol that is equipped to hold more than twenty rounds, is designed to accommodate a silencer, or is equipped with a folding stock. It is also unlawful to carry in these areas a shotgun with a magazine that can hold more than seven rounds of the longest ammunition for which it is chambered.

The populations areas for this section include the cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, and Virginia Beach and the counties of Arlington, Fairfax, Henrico, Loudoun, and Prince William. Violating this section is a Class 1 misdemeanor. Concealed handgun permit holders, those engaged in lawful hunting, those shooting at shooting ranges, and a few others are exempt from this rule.

Wearing body armor in commission of a crime

Virginia Code § 18.2-287.2 makes it a Class 4 felony, punishable by two to ten years in prison plus fines up to $100,000, to wear body armor and have a firearm or knife in your possession while committing or attempting to commit:

  • Any “crime of violence” under § 18.2-288(2) including murder, manslaughter, kidnapping, rape, mayhem, assault with intent to maim, disable, disfigure or kill, robbery, burglary, housebreaking, breaking and entering and larceny;
  • A felony violation under § 18.2-248 (manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance); or
  • A felony violation under § 18.2-248.1 (a) 2 or (a) 3 (sale, gift, distribution or possession with intent to sell, give or distribute marijuana of one half ounce or more).

The risk of jail time for these offenses is substantial, so if you are facing charges under any of this statute, you need an attorney with experience in firearm cases.

VIRGINIA PROHIBITS CARRYING A FIREARM IN CERTAIN PLACES

Airport terminals

Virginia prohibits carrying firearms and related equipment into airport terminals except in limited circumstances (Virginia Code § 18.2-287.01). Violating this law is a Class 1 misdemeanor.

Court houses

Virginia prohibits carrying firearms and related equipment into a courthouse (Virginia Code § 18.2-283.1). A violation of this law is a Class 1 misdemeanor.

School property and school buses

Carrying a weapon other than a firearm onto school property or onto a school bus (Virginia Code § 18.2-308.1) is also a Class 1 misdemeanor. Carrying a firearm onto school property or a school bus is a Class 6 felony. If that person displays the firearm on school property or on a school bus in a threatening manner or uses or intends to use the firearm there, he or she faces a Class 6 felony with mandatory jail time of five years to be served consecutively with other sentence(s) imposed.

Places of Worship

If you carry a dangerous weapon into a place of worship while a religious meeting is being held, and you do not have a good and sufficient reason for doing so, you face a Class 4 misdemeanor under Virginia Code § 18.2-283.

VIRGINIA HAS STRICT LAWS AGAINST BRANDISHING AND SHOOTING FIREARMS

Brandishing or other display of firearm not for self-defense

Brandishing, holding, or pointing a weapon, including air- or gas-operated weapons, or even something that looks similar to such a weapon, in a way that reasonably makes another fearful of being shot or injured is unlawful under Virginia Code § 18.2-282 unless it is being done in self-defense. Violation of this section is a Class 1 misdemeanor unless it occurs in an elementary, middle, or high school, or on public property within 1,000 feet of such a school, in which case, it is a Class 6 felony.

Shooting in the road, across a road, or from a vehicle.

Under Virginia Code § 18.2-286, shooting a firearm, crossbow, or arrow in or across a road or within a road’s right-of-way is a Class 4 misdemeanor. Virginia Code § 18.2-286.1 makes it a Class 5 felony to intentionally shoot from a vehicle so as to risk another’s death or injury or cause another to reasonably fear injury or death.

Shooting in public places

Under Virginia Code § 18.2-280, willfully discharging a firearm or causing one to be discharged in a street, in a place of business, or in a place of public gathering is a Class 6 felony if someone is injured. If no one is injured, it is a Class 1 misdemeanor. The unauthorized discharge of a firearm at buildings and grounds of a school, whether public or private, is a Class 4 felony. Discharging a firearm on public property within 1,000 feet of a school is a Class 4 felony unless the shooter is lawfully hunting.

Shooting at or into buildings or dwellings

If you maliciously discharge a firearm or throw a missile inside or at an occupied building and endanger a life, you are subject to a Class 4 felony under Virginia Code § 18.2-279. If someone dies as a result of that act, you face second degree murder charges. If the homicide is willful, deliberate, and premeditated, you face first degree murder charges. If the act was not malicious but was unlawful, it is a Class 6 felony. But if someone dies, even though the act was not malicious, you face involuntary manslaughter. Willfully shooting in or at a school building, whether occupied or not, is a Class 4 felony. A Class 4 felony carries a prison term of two to ten years and fines up to $100,000.

Displaying a firearm in the commission of a felony

If you use or try to use a pistol, shotgun, rifle, or other firearm, or display one threateningly while committing certain crimes, Virginia Code § 53.1 provides for adding more jail time to whatever time you receive for the underlying crime. For a first conviction, three years of prison time will be added. For a second or subsequent conviction, five years will be added. This additional time will run consecutively with whatever punishment you receive for committing the primary felony.

These rules apply to use of a weapon while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, carjacking, burglary, malicious wounding, malicious bodily injury to a law enforcement officer, aggravated malicious wounding, malicious wounding by a mob, or abduction. The penalties are severe, so if you are charged under this statute, you should consult an attorney experienced in representing clients against firearm charges.

Shooting, stabbing, cutting or wounding someone in the course of a felony or attempted felony

Virginia Code § 18.2-53 makes it a Class 6 felony to unlawfully shoot, stab, cut, or wound another while in the commission of or attempted commission of a felony.

Use of weapons in connection with drug distribution

Virginia Code § 18.2-308.4 makes it a Class 6 felony to possess, use, or attempt to use a firearm or display one threateningly while committing or attempting to commit the illegal manufacture, sale, or distribution or possess with such intent a Schedule I or Schedule II controlled substance, synthetic cannabinoids, or more than one pound of marijuana. This felony is separate and distinct from the underlying drug crime and carries a mandatory minimum imprisonment of five years which runs consecutively with any time received for the primary felony.

Third and subsequent firearm offenses

Virginia Code § 18.2-311.2 makes certain third and subsequent firearm offenses Class 6 felonies. This applies even where such violations would ordinarily be classified as Class 1 misdemeanors.

CARRYING FIREARMS IN VIRGINIA

Open carry

If you are legally allowed to possess a firearm in the state of Virginia, you may carry it in plain sight.  This is referred to as open carry.

Concealed carry in Virginia

Generally, it is a Class 1 misdemeanor, under Virginia Code § 18.2-308, to carry concealed any of the following:

  • A pistol, revolver or other firearm or missile-propelling device;
  • A dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack;
  • A flailing device with two or more connected rigid parts such as nun chahka or fighting chains;
  • A throwing star, oriental dart, or throwing disc; or
  • Any weapon of like kind.

A second conviction under this statute or a similar one is a Class 6 felony. A third or subsequent conviction is a Class 5 felony.

These rules otherwise do not apply to someone who may lawfully possess a weapon and has one in his own home or business, while going to or from an established shooting range with unloaded and secured weapons, while in a private vehicle or vessel with a properly secured weapon, and certain others. A valid Concealed Handgun Permit (CHP) acts as an affirmative defense to a charge for carrying a concealed handgun.

Obtaining a Concealed Handgun Permit (CHP) in Virginia

For those who want to carry a concealed weapon, Virginia Code § 18.2-308.02 sets out the requirements for obtaining a CHP. You must be at least twenty one years of age and demonstrate competence with a handgun. This competence can be established by certification that you have completed one of a number of specified firearms safety or training courses or a similar course.

You must apply for your permit at the circuit court in the county or city where you reside. Virginia limits the fees you will be required to pay to $50. This will be collected at the time you submit your completed application. Virginia Code § 18.2-308.03.

The court has forty five days to issue the permit. Before issuing the permit, the court will obtain a report from the Central Criminal Records Exchange to ensure you are not disqualified from obtaining a CHP. Virginia Code § 18.2-308.04.

Virginia Code § 18.2-308.09 disqualifies certain individuals from obtaining a concealed handgun permit including:

  • Those ineligible to have a firearm under sections 18.2-308.1:1 (acquitted by reason of insanity), 18.2-308.1:2 (adjudicated mentally incompetent or mentally incapacitated), 18.2-308.1:3 (certain persons involuntarily admitted for inpatient or outpatient treatment), or similar laws in another state. But there is a time period—usually five years after discharge, release, or restoration of competency or capacity—after which these individuals may apply;
  • Those subject to a restraining or protective order and prohibited by § 18.2-308.1:4 from purchasing or transporting a firearm;
  • Those convicted of a felony or adjudicated delinquent and prohibited from having a firearm, ammunition or other weaponry under § 18.2-308.2;
  • Those convicted of two or more misdemeanors within the five years preceding the application if at least one was a Class 1 misdemeanor or if, in the judge’s discretion, two or more misdemeanors were not Class 1;
  • Those addicted to or otherwise unlawfully using marijuana, synthetic cannabinoids, or any controlled substance;
  • Those convicted of driving under the influence pursuant to § 18.2-266 or similar law, or convicted of public drunkenness or similar offense, or deemed a habitual drunkard as defined by § 4.1-333;
  • Aliens, excluding those lawfully admitted for permanent residence within the United States;
  • Those who have received a dishonorable discharge from the United States armed forces;
  • Fugitives from justice;
  • Those found by a court to be likely to use a weapon unlawfully or negligently in a manner that endangers others;
  • Those convicted of assault, assault and battery, sexual battery, or certain brandishing or discharging of a firearm within the three years immediately prior to applying for the permit;
  • Those convicted of stalking; and
  • Those meeting certain other criteria.

Only a circuit court judge is authorized to deny the issuance of a concealed handgun permit. Under Virginia Code § 18.2-308.08, the judge must state the basis for the denial. You may appeal this denial and may hire an attorney to represent you at the hearing. Further appeal is also available if the Court continues to deny you the permit. But if you meet any of the disqualifying criteria, you likely will not obtain a CHP.

Virginia permits certain nonresidents who are twenty one years of age or older to obtain Virginia CHPs. These individuals must demonstrate competency with a handgun, pass a criminal history check, and pay certain fees totaling $100. Virginia Code § 18.2-308.06.

Virginia also has reciprocity arrangements with other states whereby their CHP holders may carry concealed in Virginia. The CHP holder has to be twenty one or older and the reciprocal state must provide a means of instantaneously verifying the validity of its permits twenty four hours a day. The reciprocal state’s CHP requirements must be adequate to prevent permits issuing to persons who would be denied permits in Virginia.

When you are issued a CHP, your name, description, and the fact that you have a CHP will be entered in the Virginia Criminal Information Network. This information is accessible to law enforcement. Virginia Code § 18.2-308.07.

When you carry concealed, you must have your concealed carry permit on your person at all times. If a law enforcement officer asks to see it, you must present it. Virginia Code § 18.2-308.01. Failure to do so carries a $25 fine. Some courts will waive the fee if you come to court and present your permit and appropriate identification at that time.

The Virginia concealed handgun permit (CHP) is issued for five years and is renewable. Virginia Code § 18.2-308.010 sets out the terms for renewal which essentially require that you meet the same requirements as when you originally applied. If, while holding the CHP, you are found to be disqualified, your permit will be revoked under Virginia Code § 18.2-308.04C. If you become disqualified and hold a CHP, you must surrender it. Virginia Code § 18.2-308.013. A court may suspend your CHP while a felony charge is pending.

The CHP holder is one of several categories of individuals permitted to carry a loaded semi-automatic center-fire rifle or pistol that is equipped to hold more than twenty rounds. Virginia Code § 18.2-287.4otherwise makes such carry unlawful.

Restrictions on your CHP relating to drugs and alcohol

Virginia Code § 18.2-308.012 prohibits certain behavior while carrying a weapon pursuant to a CHP. You may not consume alcohol in a licensed club, restaurant, or bar in Virginia while carrying concealed. Violating this statute is a Class 2 misdemeanor.

You may not carry concealed in a public place while under the influence of alcohol or illegal drugs. A violation of this statute is a Class 1 misdemeanor and conviction will cause your CHP to be revoked. If your permit is revoked under this statute, you will not be eligible to reapply for your permit for five years.

Possessing a firearm while unlawfully in possession of a Schedule I or II substance 

Virginia Code § 18.2-308.4. A penalty under this section will be applied separately and in addition to any other penalties for other illegal acts. If you possess a firearm in these circumstances and it is on your person, conviction carries a minimum of two years in prison and the sentence will run consecutively with any other penalties imposed for other criminal acts committed at the time.

HUNTING WHILE UNDER THE INFLUENCE

Virginia Code § 18.2-285 makes it a Class 1 misdemeanor to hunt with a firearm, bow and arrow, or crossbow while under the influence of alcohol. It is also a Class 1 misdemeanor to hunt under the influence of a narcotic, intoxicant, or drug, a combination of such substances, or a combination of any such substance and alcohol, such that your ability to hunt safely is impaired.

 

CALL FOR YOUR LEGAL CONSULTATION

As you can see, Virginia’s firearm laws are very specific and are interwoven with laws applicable to crime. Sara Gaborik has successfully represented defendants in cases involving firearms for over a decade. If you are facing such charges, you need an experienced, knowledgeable, and effective attorney like Ms. Gaborik who can advise you and represent you aggressively.

For your legal consultation, call Ms. Gaborik at (804) 334-4351 or (804) 780-3083