Published on 4/18/2022, 5:26:00 PM
I was arrested for having a gun in my car in Maryland. What next?
If you have been charged with a criminal case for having a gun your car, you may have many different questions. Should I hire a lawyer? What am I charged with? What are my defenses? How do I beat this case?
This article was written by a Maryland criminal defense attorney to answer many of the common questions associated with handgun in vehicle cases. Let's dive in:
1. Why do I have so many charges?
Many defendants facing gun charges from a gun in a car are charged by a charging document alleging numerous different criminal law violations stemming from possession of a single firearm. Generally, most gun in car charges in Maryland come from two separate statutes:
a. Wear carry or transporting a handgun
If a gun was found in your vehicle, you likely received charges from within the Wear carry or transport a handgun statute.
The most common set of charges are
Handgun in Vehicle
Handgun on Person
These charges are misdemeanors; however they typically carry the potential for an active jail sentence, even for a first time offender. A first time offender faces a maximum of five years of active jail time. If a person has a prior conviction for wearing, carrying, or transporting a handgun, then they face increased penalties.
If the gun is loaded, a person may also have charges of:
Loaded handgun in Vehicle
Loaded handgun on person
If the handgun was loaded, there are additional potential penalties including a possible mandatory jail sentence.
b. Public Safety Article Charges
In addition to wear, carry, transport charges, most Defendants are also charged under Maryland's Public Safety Article. Specifically from Public Safety Article 5-133, titled Restrictions on Possession of Regulated firearms. Within this statute is a number of potential charges that most handgun charges include.
There are a wide array of reasons a person could have charges related to being prohibited from possessing a firearm. Some common reasons include:
Previous conviction for a disqualifying crime.
Conviction of a common law crime and imprisonment for over two years
Being a fugitive from justice
Being a habitual drunkard
Being a habitual user of drugs
Being found incomptent by a Court previously
Being under 21 years old at the time of possession
Being previously adjudicated delinquent, and being under 30 at the time of the possession.
Being previously convicted of a felony
Being previously convicted of a crime of violence (Not what you'd expect)
These public safety article charges are usually misdemeanors with a maximum penalty of a single year; however, if a person has a prior felony, or a prior crime of violence on their record, they are likely facing felony charges with a much higher maximum penalty.
2. Do I need a lawyer?
The simple answer to this question is YES If you've been charged after having a gun in your car, it is likely that you will need a lawyer. Gun Charges in Maryland are no joke, and the State of Maryland usually seeks jail time in these cases. Additionally, there is the potential for loss of employment, extended incarceration, and loss of firearm rights if a person is convicted.
Every person has the ability to represent themselves; however, doing so in a firearms case could be a bad idea. Everyone should have an attorney on their case, even for cases as simple as their first dui.
If a person cannot afford to hire a private attorney, they can apply for a Public Defender, who is paid by the State of Maryland.
How do I find a qualified Maryland Criminal Defense Lawyer?
If you or a loved one has received charges, you may be wondering: How do I find the best criminal lawyer in Maryland?
3. What are my defenses?
Challenging the Stop.
Most gun in vehicle charges in Maryland begin with a roadside stop. The first step in creating a defense is to decide: how do I challenge the roadside stop of my vehicle?
Challenging the search of my vehicle.
The search of every vehicle is limited by the Fourth Amendment of the United States Constitution. If Police can "justify" the stop, they also need to "justify" the search and seizure. Police will therefore need probable cause to justify a warrantless search of a vehicle. This can come from a number of sources.
Most commonly in Maryland, the odor of marijuana in a vehicle gives Police probable cause to search a vehicle's entirety for "evidence" of marijuana. This scope gives them the ability to open the glove compartment, search under seats, and even inside of the trunk. This accounts for nearly 90% of vehicle searches in our experience.
Another common reason to search a vehicle is the "plain view" doctrine. This occurs when an Officer is able to view a firearm, or other criminal paraphernalia without having to open the door or disturb anything. Why do you think Police carry the world's brightest flashlights?
What if I wasn't in the vehicle when it was searched?
The landmark case regarding searching of vehicles once a person has been removed from the vehicle is Arizona v Gant. In that case, the Supreme Court held that Police May search the passenger compartment of a vehicle, incident to a recent arrest, only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest.
What if the gun was in another person's vehicle?
If you are a passenger in a vehicle, the State sometimes makes a claim that since you don't own the vehicle that you are in, or if you aren't in control of it, you don't have a right to object to the stop or search of that vehicle. They claim that you lack the "standing" to make even make an argument about the stop or search of the car, or you, even when you end up getting charged with something in that vehicle or on your person while you were a passenger in that vehicle.
In 2007, the Supreme Court in a case called Brendlin v. California found that a passenger HAS STANDING to argue against the stop or search of a vehicle. That means that you CAN argue that the police had no reason to stop or search a vehicle even if you weren't driving it and you were just riding along.
What if it wasn't a gun at all?
The definition of a firearm might seem like a silly thing to argue about in a Maryland gun case. Having said that, if you find yourself asking: "Was that actually a gun in my car?", it may be something to tell your lawyer.
A person cannot be convicted of a wear carry transport offense if the firearm is not capable of propelling a bullet with gunpowder. In layman's terms, the gun must fire for the State to prove these offenses.
Not all possession of a firearm cases involve "operability". Public Safety article gun laws do not require the same proof about the gun in question. The gun must only be a "regulated firearm", which includes ALL handguns.
Operability is an issue you can discuss with your attorney during a free consultation.
4. How do I beat this case?
If you've been charged while transporting a gun, you may have additional avenues to beat your case and avoid a criminal record. The Wear Carry Transport statute itself includes a number of exceptions, or reasons you can transport a gun without breaking the law.
For example, a person may transport a gun in their car in Maryland if:
They are heading to a point of sale;
They are going to and from a gun range;
They are going between residences;
They are law enforcement, or active duty military;
They have a carry license;
They are a gun collector going to and from a gun show
they are on real estate that the person owns or leases or where the person resides or within the confines of a business establishment that the person owns or lease;
they are a supervisory employee:
in the course of employment;
within the confines of the business establishment in which the supervisory employee is employed; and
when so authorized by the owner or manager of the business establishment
They are going to a Police Station to surrender the gun; or
They are carrying an approved signal pistol;
5. What if I didn't know the gun was there?
Knowledge is an aspect of every "possession" charge. If a person genuinely does not know there is a gun in the car, they may not be found to be in possession of a firearm.
Knowledge as a defense is a legitimate defense to all gun laws in Maryland; however, only a skilled attorney will be able to convince a jury that a Defendant lacked knowledge. This type of defense requires testimony of the Defendant, which can expose them to cross examination on topics like their prior criminal record.
Every gun charge is different, and each gun charge offers opportunities for an attorney at law to argue different theories of defense. Criminal law is not "one size fits all". Your attorney should be able to evaluate the gun charges brought against you, and answer how to defend any case during a free consultation.
6. What are my legal options?
So you are charged with a gun in my car Maryland, and you'd like to speak with an attorney at law to discuss your gun charges. What are your options? A qualified criminal defense attorney will evaluate your Maryland gun case and provide tailored advice.
Many of the defenses explained above, with the exception of knowledge, are legal defenses can be argued at a "motions hearing" in Circuit Court, or during a trial in District Court.
Generally, a person has two options when facing gun charges:
a. Having a trial
Every Defendant is entitled to a trial on their gun charges. Because all of the gun charges in Maryland carry maximum penalties of at least one year, every Defendant is entitled to a jury trial.
A trial is an adjudicatory hearing where the State of Maryland bears the burden of proving the gun charges beyond a reasonable doubt. A Defendant does not have to prove their innocence, rather, their criminal defense lawyer only needs to create a reasonable doubt about the gun charges.
Most attorneys will give legal advice and explain the trial process during a free consultation. A trial may be the best way to proceed in any case you that would like to challenge law enforcement, or argue about knowledge of possession.
b. Entering a plea agreement
It is no secret that most criminal cases end with an agreement between the State of Maryland and the Defendant, commonly referred to as a "plea agreement". Because most prosecutors seek jail time in gun cases, and many gun offenses contain mandatory minimum sentences, these cases can be resolved through amended charges or reduction in charges.
Occasionally, the State of Maryland will drop gun cases when they do not believe they can prove their case in Court.
7. How long will this case take?
As long as the case isn't dropped, a Defendant should anticipate a period of several months between initial charges and their first trial date. If a Defendant is held without bond, they typically receive the first available trial date. For second offense cases, Defendants may be held without bond pending trial.
This decision is made at a bond review
Gun cases in Maryland District Court
Nearly every criminal case in Maryland originates in District Court, the lowest Court in Maryland. Because most gun charges in Maryland are misdemeanors, a large portion of gun cases remain in District Court.
If you had a gun in your car, it is likely that your case would remain in District court unless:
You were charged with other felonies like possession of a firearm with a prior felony conviction, drug distribution, or another felony;
The State chooses to file a criminal information or indictment in Circuit Court based on their practices; or,
You file a jury trial prayer
Most District Court cases are set for trial within a few months of the issuance of charges, as all trials in District Court are bench trials.
Gun cases in Maryland Circuit Court
Many Maryland gun cases are heard in Circuit Court, where jury trials take place. Most felonies in Maryland must be tried in the Circuit Court, with the exception of certain felonies like theft.
If your maryland gun case reaches Circuit Court, you'll need a qualified criminal defense attorney who has tried cases before juries in the past. Even if it's your first gun charge, you'll need a lawyer to back you up.
Criminal cases in Circuit court can take longer than gun cases in District Court because there are more hearings associated with a Circuit Court case. Regardless of this, all criminal cases in Circuit Court must go to trial within 180 days of a Defendant's initial appearance under Maryland Statute, unless a Judge finds good cause to go beyond this speedy trial, or Hicks, date.
8. Where do I find a lawyer?
If you've received gun charges from a firearm in your vehicle, you may be left wondering where you can find an attorney.
You will be assigned a public defender if you cannot afford an attorney
The State will provide you with a Public Defender; however, you cannot choose what lawyer is appointed to your case.
You can seek private counsel.
In the digital age, finding private counsel is as simple as plugging "criminal lawyer" into any online search tool. You can also contact your local bar association, consult friends or family, or do additional research online to find a local attorney who has the experience you're looking for.
How to be sure they understand Maryland's gun laws.
This article should have given you a good idea what to look for in a criminal lawyer. Any attorney you consult should be familiar with all of the topics covered in this article.
Received gun charges?
The criminal defense Attorneys with FrizWoods would be more than happy to discuss your case with you.