If you are arrested and charged with unlawful gun possession in Florida, you face serious consequences including prison time and a stiff fine. Depending on the situation, you could be charged with a third-degree felony which is punishable by up to five years in prison and a maximum $5,000 fine. However, the circumstances of your situation might justify your gun possession or might suggest that you did not possess the gun at all. Here are some of the common defenses that might apply in your Florida gun possession case.
You Were Allowed To Carry
You have the right under the Second Amendment of the United States Constitution to keep and bear arms. This right is also contained in Article 1, Section 8 of the Florida Constitution. In fact, you don’t even need a license or a permit in order to possess a rifle, shotgun, or handgun.
However, it is illegal under Florida law to possess a gun if you are a convicted felon unless your civil rights are restored. It is also illegal under Florida law to carry a gun that is concealed unless you have a concealed firearm license. Moreover, a machine gun is unlawful to possess in Florida unless your ownership and possession of it is protected by federal law.
You Didn’t Know About The Gun
Suppose you borrow your best friend’s car and are then stopped by law enforcement for reckless driving. If for whatever reason law enforcement searches that car and find your friend’s handgun under the driver's seat of the car, then you could get charged with unlawfully carrying a concealed firearm. However, you might not have known that your friend left the gun under the seat of their car when you borrowed it. If you did not knowingly possess the gun, then the charges against you should be dropped.
You Didn’t Possess The Gun
If law enforcement sees a gun in your vicinity, they might assume that it is your gun and then arrest you for constructive possession of the gun. This means that you might not be physically holding the gun yet still be charged with the possession of it when it is in your proximity. But what happens if the gun is not yours and you do not actually assert any control over it? Should this be the case, the prosecutor might only be able to rely on circumstantial evidence to prove that you exercised control over the gun. If the prosecutor can’t prove beyond a reasonable doubt that you possessed it, then you should be acquitted.
Similarly, if you were misidentified by a witness as someone who possessed the gun, then you could defend on the grounds that the witness incorrectly identified you. This also goes for law enforcement who might incorrectly witness you as the person who possessed the gun.
The Gun Was An Antique Firearm
Perhaps you have an antique gun. In Florida, if your gun is an antique and you are not using it in the commission of a crime, then you are not possessing a deadly weapon. Because of this, you cannot be found guilty of illegally possessing a firearm. However, the definition of an antique firearm is extremely specific and only applies to firearms manufactured in or before 1918 or replicas thereof.
You Were Just Defending Yourself At Home Or In Your Car
You might have used a gun in order to save your own life, justifying its possession. Specifically, you have a right in Florida to stand your ground and to use deadly force if you reasonably believe that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to yourself or another or to prevent the imminent commission of a forcible felony. Notably, in Florida, you don’t have a duty to retreat from your own home or car.
Law Enforcement Violated Your Rights
Moreover, law enforcement might have violated your Fourth Amendment rights under the United States Constitution. Suppose you own a business where the gun is found on the premises by law enforcement. In order for law enforcement to search your business without your consent, they typically have to have a warrant which specifically refers to the search of your business and the items that law enforcement is looking for. So, if law enforcement did not have the warrant to search your business for a gun or other deadly weapon but they searched the entirety of your place to find it, then they typically cannot offer evidence of the gun to prove unlawful possession.
Law Offices of Greg Rosenfeld, P.A. is dedicated to representing those who are accused of criminal offenses in Florida. If you need help, reach out to our knowledgeable and experienced attorney by calling (561) 902-1122 or by contacting us online for a free consultation today.