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How do I defend against or avoid a weapons charge in San Diego?

Carrying a loaded firearm in a public area or a motor vehicle is considered a crime in California. While each case is charged according to its unique circumstances, most are usually prosecuted as misdemeanors, which can result in a maximum fine of $1,000 and up to one year in jail.

Prosecutors determine whether to file felony or misdemeanor charges based on the type of weapon officers discover during an arrest, how the suspect intended to use the firearm and whether they have any previous criminal convictions.

Defining the terms “firearm” and “loaded”

California law states that firearms are devices designed as weapons that discharge a projectile through a barrel via an explosion. Examples are:

  • Firearms: Shotguns, rifles, revolvers, pistols and tasers are the most common types. Neither pellet nor BB guns fit the definition of a firearm.
  • Loaded firearm: State law considers these weapons loaded when an unexpended cartridge is in the gun’s firing chamber and when a live round sits in an attached magazine or clip.

To be convicted of a loaded weapons charge, the defendant does not have to be aware that the gun was loaded. However, they must be aware that they are in possession of a firearm to be guilty under the law.

Common defenses against a weapons charge

An experienced San Diego criminal defense attorney can raise several legal challenges to a loaded weapon charge. These include:

  • The person was unaware they had a gun, such as in a backpack or their vehicle
  • The gun was not loaded
  • Police conducted an illegal search without a warrant or probable cause
  • The defendant is exempt from criminal liability, such as being a member of law enforcement or the military, or has a valid California concealed carry permit

Note that California does not honor out-of-state concealed weapons permits, even if they are valid.

You may be eligible for pretrial diversion

If charged with a misdemeanor weapons offense, first-time, nonviolent offenders may be eligible for pretrial diversion. Your attorney will negotiate with prosecutors to have you attend an education class or do volunteer work in return for dropping and sealing charges.

This opportunity not only helps you avoid having a criminal record but can keep you from experiencing potentially devastating personal and financial consequences over negative impacts on housing, education, employment and immigration.

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