Misconduct Involving Weapons

What exactly is “misconduct involving weapons”?

As you might imagine, guns are highly regulated by the government. There are many violations one can commit involving firearms that could be considered misconduct involving weapons. This post is talking about one specific situation that we see. Mainly, a driver with a firearm in the car during a traffic stop. When a driver is stopped by the police, and that driver has a firearm in the car, this raises some issues and creates some obligations for the driver.

Specifically, during a traffic stop, if the driver has a firearm in the car and the police officer asks the driver if there are any weapons in the car, the driver has to say yes. If the driver has a gun and says he does not, and the officer later discovers the gun, that’s a problem for a couple reasons.

Police response to finding an unexpected gun

If a police officer is not expecting a gun and a gun shows up, that may make the police officer uncomfortable, afraid, angry, aggressive or some combination of those. That could be bad for the driver. The main goal of a traffic stop is not to get shot or killed. Avoiding a fearful or angry police officer is an important part of achieving that goal.

Misdemeanor charge of misconduct involving weapons

It is a crime to not tell a police officer that you have a gun when asked. Not being truthful about having a firearm (when asked) is considered “misconduct involving weapons”, a class 1 misdemeanor. This charge is often written on a ticket as “carry deadly weapon – failure to admit”.

If an officer does not ask about firearms, then the driver has a decision to make.

What does it mean, legally speaking, to commit misconduct involving weapons?

The misdemeanor charge of misconduct involving weapons is set out in A.R.S. 13-3102(A)(1)(2), which says “A person commits misconduct involving weapons by knowingly: Carrying a deadly weapon except a pocket knife concealed on his person or within his immediate control in or on a means of transportation: When contacted by a law enforcement officer and failing to accurately answer the officer if the officer asks whether the person is carrying a concealed weapon.” This charge can be broken down into four elements:

1. Knowingly
2. Carrying a deadly weapon
3. On his person or within his immediate control
4. Not accurately answering the officer when asked about the weapon.

Knowingly. This means that the person being questioned is aware that there is a deadly weapon on his person or in his immediate control. For example, if I am driving my friend’s car, and there is a firearm under the front seat that I don’t know about, then I lack the required “knowingly” component required by the law.

Carrying a deadly weapon. Any firearm is considered a deadly weapon. A pocket knife (a folding knife with a blade less than 4 inches) does not count as a deadly weapon.

On his person or within his immediate control. “On his person” means the weapon is in a pocket or a holster on the person, or is otherwise being carried by the person. “Within his immediate control” means the weapon is within the reach of the person. In the context of a traffic stop, a weapon is considered to be in the driver’s (or a passenger’s) immediate control if the weapon is anywhere within the passenger compartment. It is not in the immediate control of a driver or passenger if the weapon is in the trunk, for example.

Not accurately answering the officer when asked about the weapon. Note that this is written broadly, and can include scenarios other than a person denying they have a weapon. Any answer to the officer’s question “Do you have a gun in the car” that is not accurate could trigger this law. Any answer that is not accurate regarding the type of weapon, or the location of the weapon, or the number of weapons, would be a problem.

Why might a driver fail to disclose a firearm when asked?

It is impossible to speculate as to all of the possible reasons, but some might include:

• • The driver has been drinking or doing drugs, thereby making them a prohibited possessor of firearms. The driver might be afraid of the consequences of being found with a firearm while drunk or high.
  • The driver is a prohibited possessor. Maybe the person has a past felony, or is on probation for a crime of domestic violence and is prohibited from possessing a firearm.
  • The driver is unaware that they have to disclose a firearm when questioned by law enforcement.
  • The driver is unaware that there is a firearm in the car.

How might a police officer find a firearm if the driver doesn’t disclose it?

Putting aside for a second that it is a legal requirement to disclose a firearm when questioned by law enforcement, one might wonder how would the police officer find a gun anyway?

It’s possible the officer won’t find the weapon. If it is a standard stop for a speeding ticket, for example, then there is a good chance that the officer will never find it.

However, police officers are good at finding reasons to search a vehicle. “I smell weed,” for example, might be the basis for a police officer to search a vehicle without the driver’s consent. Maybe a driver gets pulled over for street racing in Phoenix. The police then end up impounding the car. When a car is impounded, the contents of the car are inventoried (a.k.a. searched).

Police can look through windows into a car without your permission. If anything is in “plain sight”, like on a seat, they can use that against you.

What are the consequences of a misconduct involving weapons conviction?

A misconduct involving weapons conviction is a class 1 misdemeanor, like a DUI or aggressive driving conviction. A class 1 misdemeanor carries the potential for up to six months in jail, $2,500 in fines plus surcharges, which would nearly double the fine, and 3 years probation. In practice, jail time is unlikely and the fine will be far less than the maximum.

In addition to the penalties that come with a class 1 misdemeanor, upon conviction the judge may order the defendant to forfeit the weapon involved in the offense to the State. See A.R.S. 13-3105.

Defending against a charge of misconduct involving weapons

An important issue to look at in this kind of case is how did the defendant come in contact with the police officer in the first place? In other words, was there probable cause for the traffic stop? Or did the officer make something up because he just wanted to harass a driver for some reason.

Something else to investigate is what exactly was said between the driver and the police officer? Maybe the officer wasn’t clear in what they were asking. Often there is video from an on-body camera or dash camera that can shed light onto what exactly went down.

Another defense that comes up is the driver did not know there was a weapon in the car. For example, this might be the case when a driver borrows a car from a friend, and the friend fails to mention there is a firearm in the car.