In Virginia, if a felon gets caught with a gun, they will face legal consequences under Virginia Code Section 18.2-308.2. That statute makes it illegal for any person who has been convicted of a felony to own, possess, or have in their custody any firearm or ammunition.
Violating that statute is considered a Class 6 felony, which can result in legal consequences, including imprisonment ranging from one to five years. Additionally, under federal law, a person’s criminal background can also make it illegal for them to possess a gun.
This applies to individuals who have been convicted of a federal crime that carries a potential sentence of over a year in jail, including felonies. The prohibition on firearm possession by felons is part of a larger effort to prevent individuals with serious criminal backgrounds from accessing weapons.
Definitions: Virginia courts define a firearm in broad terms. It means any instrument made or intended to fire a projectile by means of an explosion. The gun does not have to be loaded. It does not even have to work, since courts have ruled that an inoperable gun still counts. The law also covers ammunition, stun weapons, and explosive material. One narrow exception lets a person keep a stun weapon inside their own home.
Due to the gravity of the offense of firearm possession, law enforcement officers typically arrest and detain the individual caught with a gun immediately, resulting in a felony charge. Following the arrest, the individual attends a court hearing where the charges are formally presented. During that hearing, the judge may set bail. The criminal process will then continue with an arraignment, pre-trial motions, plea deal negotiations, and trial.
Process/Steps: The first hearing usually covers your rights and bond. After that, a felony like this one goes through a preliminary hearing in district court. There, a judge decides if there is enough evidence to move forward. If so, the case goes to a grand jury, which can issue a formal charge called an indictment. The case then moves to circuit court for trial.
Timelines: Virginia sets no statute of limitations for felony charges. Felon in possession is a felony, so the state can bring the charge at any time. There is no deadline. Short time limits apply only to most misdemeanors, not to felonies like this one.
What Is the Minimum Sentence for Felon in Possession of a Firearm?
In Virginia, felon in possession of a firearm is a Class 6 felony. A Class 6 felony carries one to five years in prison. A judge or jury may instead choose up to 12 months in jail and a fine up to $2,500.
Two situations carry a mandatory minimum that the court cannot suspend. If the prior felony was a non-violent felony within the past 10 years, the law requires at least 2 years in prison. If the prior felony was a violent one, the law requires at least 5 years. These terms run on top of any other sentence.
However, the exact sentence can vary based on factors such as the individual’s criminal history and the specifics of the case. A plea deal may result in a reduced sentence, and charges might be dropped or dismissed in certain instances.
Several factors can lead to a longer sentence for a felon caught in possession of a firearm in Virginia, including:
- Prior Criminal Record: A history of previous convictions, especially for violent crimes or other firearms offenses, can lead to a longer sentence
- Circumstances of Possession: The context in which the firearm was found, such as during the commission of another crime or in a prohibited location, can increase the punishment
- Type of Firearm: Possession of certain types of firearms, such as assault weapons or those with illegal modifications, can lead to a longer sentence
- Number of Firearms: Possession of multiple firearms is seen as more serious and can result in a longer sentence
- Usage of the Firearm: If the felon used the firearm in a threatening manner or to commit another crime, the sentence can be significantly increased
- Public Safety Concerns: Situations where the felon’s possession of the firearm posed a significant risk to public safety, such as in a crowded public place, can result in a more severe sentence
Risks/Penalties: Prison is not the only penalty. A Class 6 felony conviction can add a fine of up to $2,500. The court may also order probation. A new felony conviction can take away other rights too, such as the right to vote, serve on a jury, or hold public office. Those rights stay lost until they are restored through the proper process.
Further, under federal law, felon in possession is a separate crime under 18 U.S.C. 922(g). It has no set minimum sentence, but the maximum is up to 15 years in prison. However, if the felon has three or more prior convictions for violent felonies or serious drug offenses, a mandatory minimum of 15 years applies under the Armed Career Criminal Act.
Can a Felon Be Around a Person With a Gun?
In Virginia, while a felon can be around someone who has a gun, they need to be cautious. The concept of constructive possession is crucial here. Constructive possession means that even if the felon does not physically hold the firearm, they could still face charges if they are aware of the firearm’s presence and have the ability to control it.
For instance, if a felon is in a house where a gun is present and they know about it, they might be charged with constructive possession. This also applies to situations outside the home, such as in a vehicle.
It is important to note that it is the state’s responsibility to prove constructive possession beyond a reasonable doubt. However, in order to avoid any legal complications, it is always best for felons to steer clear of situations involving firearms.
Evidence/Documents: To convict, the state must prove two things. First, that you have a prior felony conviction. It usually shows this with certified court records, like the judgment of conviction. Second, that you possessed the firearm. Proof of possession can include witness accounts, photos or video, fingerprints or DNA on the gun, and where the gun was found in relation to you.
What Weapons Can a Felon Own To Protect Themselves?
In Virginia, felons are generally prohibited from owning or possessing firearms under both federal and state law. However, there are exceptions for weapons intended for self-defense, including:
- Antique Firearms: Felons may possess antique firearms, defined as firearms manufactured before 1898 or replicas that do not use conventional ammunition
- Non-Lethal Weapons: Felons can own and use non-lethal self-defense weapons such as pepper spray, stun guns, and tasers
- Other Legal Weapons: Felons may possess other legal weapons not classified as firearms or weapons of mass destruction, including knives (within legal limits), batons, and other self-defense tools
It is important to be aware of and comply with any local laws and regulations regarding the possession of these weapons for self-defense. Further, local municipalities and businesses may also have rules regarding these weapons.
State Variations: Gun laws for people with felony convictions differ from state to state. Some states define a firearm more broadly than Virginia, and others more narrowly. Penalties and mandatory minimum prison terms also vary. The steps to restore gun rights are different in each state as well. If a conviction or a firearm crosses state lines, federal law can apply on top of state law.
Can a Felon’s Gun Rights Be Restored?
Yes, in Virginia, a felon’s gun rights can be restored if certain criteria are met and procedures are followed. Under Virginia Code Section 18.2-308.2 and related statutes, felons convicted of a nonviolent felony can petition the court to have their firearm rights restored if they meet the following conditions:
- Nonviolent Felony: Their felony must have been nonviolent, meaning it cannot have involved any form of violence, assault, or the use of a firearm
- Time Period: The individual must have completed all aspects of their criminal sentence and waited for a specific period before petitioning for restoration
- Residency: The person must be a resident of the state of Virginia
- Single Felony: The petition is typically only available to individuals with a single nonviolent felony conviction
- Restoration of Civil Rights: The individual’s civil rights, including the right to possess a firearm, must have been restored
If all of the above criteria are met and the court grants the petition, the individual’s firearm rights will be restored. They will then be allowed to legally own and possess firearms in Virginia. It is important to note that this process is different from the Virginia expungement process. Restoring gun rights does not expunge the original felony conviction. Rather, it simply restores the person’s right to possess firearms.
Overall, Virginia law allows a felon to restore their gun possession rights as long as they are not deemed dangerous to public safety. Consulting with a local Virginia attorney can provide more specific guidance on restoring gun rights or possessing items for self-defense. LegalMatch can help you set up a consultation with an attorney near you.
Costs/Fees: A case like this brings costs beyond any fine. You may owe court costs and other filing fees. Hiring a private attorney adds a fee, which depends on the lawyer and the work involved. If your defense needs an expert, such as a firearms or fingerprint analyst, that adds cost as well. Ask any lawyer for a clear fee estimate before you sign.
The Importance of Hiring a Lawyer: Handling this charge on your own is risky. The rules of evidence and the mandatory minimum sentences are hard to apply without training. One small mistake, like a weak motion or a missed deadline, can cost you years. A defense lawyer can test how the gun was found and seized, challenge the claim that you possessed it, and push for a better result.
Do I Need a Lawyer if I Am Charged With Felon in Possession of a Firearm?
If you have been previously convicted of a felony and are now facing charges for possession of a firearm in Virginia, it is crucial to consult with a Virginia criminal lawyer immediately.
A criminal attorney can help you understand Virginia’s specific laws on firearm possession as a felon and provide you with representation throughout the criminal process if you have been charged. They can also assist you in having your firearm rights restored if they were taken away from you.
Additionally, an attorney will also be able to ensure that your legal rights are protected and help you achieve the best possible outcome for your case. This may include having the charges dropped, negotiating a plea deal on your behalf, or representing you in any necessary in person court proceeding.
