Misconduct Involving Weapons

ARS 13-3102

Arizona law enforces the proper conduct of dealing with deadly or prohibited weapons with the policy of protecting its citizens from their unlawful use. The Misconduct Involving Weapons (MIW) statute is A.R.S. § 13-3102. Due to the seriousness of the consequences of the improper use of deadly weapons, the penalties for violations are usually felony offenses. A.R.S. § 13-3102 however, defines seventeen different types of misconduct each with a corresponding penalty, some less stringent than others.

What is a Deadly or Prohibited Weapon?

So, what defines a deadly or prohibited weapon? A.R.S. § 13-3101 provides some clarity. While to John Wick, even a pencil could be a deadly weapon, in Arizona they are defined as “anything that is designed for lethal use” including a firearm. Prohibited weapons are divided into eight different categories. Some notable entries are silencers, automatic weapons, Molotov cocktails and explosives. Some items that are not prohibited are fireworks, propellants, and illumination devices.

Who is a Prohibited Possessor?

Many of the misconduct rules involve someone being in possession of a deadly weapon or being a prohibited possessor of a weapon. Possession simply means physically owning or exercising control over. A prohibited possessor is someone who has been deemed ineligible to own a deadly weapon by the state. Examples of a prohibited possessor would be any person convicted of a felony, a person who is serving time in prison or someone who has been determined by a court to be a danger to themselves or others.

What is Possession?

The law recognizes different types of possession. “Actual possession” means the defendant knowingly had direct physical control over an object.

“Constructive possession” means the defendant, although not actually possessing an object, knowingly exercised dominion or control over it, either acting alone or through another person. “Dominion or control” means either actual ownership of the object or power over it. Constructive possession may be proven by direct or circumstantial evidence.

Both actual and constructive possession may be sole or joint. “Sole possession” means the defendant, acting alone, had actual or constructive possession of an object. “Joint possession” means the defendant and one or more persons shared actual or constructive possession of an object.

Categories and Penalties of MIW Charges

The seventeen types of MIW charges can be divided into subcategories. Within each subcategory, each individual MIW charge may have a different penalty associated with it. Using, possessing, or exercising control over a deadly weapon in furtherance of any act of terrorism as defined in section 13-2301 or possessing or exercising control over a deadly weapon knowing or having reason to know that it will be used to facilitate any act of terrorism as defined in section 13-2301 is a class two felony—with penalties ranging from 3-35 years in prison depending on the person’s criminal history. The very lowest penalty associated with a misconduct involving weapons charge is a class 1 misdemeanor which can carry a six-month jail sentence, so MIW charges are quite serious.

Misconduct Involving Weapons Penalties

Seven of the seventeen misconducts involve just possessing the deadly or prohibited weapon. The most severe misconduct is possessing a deadly weapon to if you are a prohibited possessor, which is a class 4 felony. Depending on a person’s criminal history, if you are a prohibited possessor due to felony convictions—you could face anywhere between 1-15 years in prison. The least serious misconduct in this category is possessing a deadly weapon if you are under 21 years old, which is a class 3 misdemeanor. This can lead to up to 30 days in jail for a first-time offender.

Use Penalties

The other MIW charges can be categorized as use penalties, meaning you are doing more than just possessing the weapon to be charged. Giving a deadly weapon to another person so they can commit a felony which is a class 3 felony. This can lead to two to eight years and nine months in prison for a first-time offender. The least harsh use penalty is for refusing to remove your weapon in a public establishment when asked to. This is a class 1 misdemeanor meaning you may get up to six months in jail for a first-time offender.

Example of Arizona Misconduct involving weapons Case

State v. Cox, decided in 2007 by the Supreme Court of Arizona, is a good example of a misconduct involving weapons case. Mr. Cox was pulled over by a sheriff for an improper registration tag on his license plate. The sheriff noticed a shell casing on the dashboard and asked Mr. Cox if there was a firearm in the car, Mr. Cox said no. This was his first misconduct involving weapons charge, lying to a police officer about having a deadly weapon. Then, after discovering a shotgun and a pistol in the car, the officer discovered Mr. Cox had a previous felony. This is Misconduct involving weapons charge number 2 and 3, prohibited possession of two deadly weapons. Mr. Cox was convicted of these 3 charges of Misconduct involving weapons charges and was sentenced to mitigated six years in prison.

What can you do if you’re charged under ARS 13-3102

There are a number of legal issues that arise in these types of cases. Come related to pre-trial constitutional violations such as violations of the Fourth Amendment for unlawful search and seizure. Some relate to statements made, in violation of the Fifth Amendment and a person’s Miranda rights. Do not ever make statements if you are a prohibited possessor. Even if the gun in a car was possibly someone else’s, as you can see above, you could be charged as having constructively possessed it just by talking to officers about your knowledge of the gun in the car. For the misdemeanor charges, the issue of whether the gun was concealed when an officer asked about it is often a trial issue—a factual issue that must be decided by the fact finder. Many of these cases are trial-related cases based on the facts of the case—where was the gun found, what statements were made about it, and what type of knowledge did the person have about the gun or weapon.

Litwak Law Group’s criminal defense attorneys pride themselves on fighting aggressively and professionally for the constitutional rights and freedoms of their clients. We are constantly litigating Fourth Amendment, Fifth Amendment, Sixth Amendment, and Fourteenth Amendment constitutional violations. We try these cases where our clients want to exercises their constitutional right to trial. We interview witnesses, review all discovery, craft creative defenses, cross-examine aggressively, and present clear defenses to Arizona Juries. We do everything we can to get the best possible resolution for our clients, including dismissals, not guilty verdicts, or favorable plea agreements.  Should you be charged with misconduct involving weapons in Arizona, contact Litwak Law Group today.