New Jersey Weapons / Gun Possession Lawyer
New Jersey is one of the most aggressive states when it comes to guns. The state not only prohibits the illegal use of weapons but goes so far as to criminalize possession in many situations. If you are arrested for illegal possession of a firearm, you can face serious penalties. Indeed, New Jersey has recently cranked up the punishment defendants will face and guarantees time in prison in many cases.
Even if you don’t live in New Jersey, you need to understand our possession laws should you travel to the state. Ignorance of the law is no excuse, and even people who are stopping briefly in the Garden State can face time behind bars for illegal weapons possession.
Please contact Tara Breslow-Testa and Associates today if you have questions. Below, we look at the most significant state and federal laws on weapons possession. We then turn our attention to possible defenses. Of course, each case is unique, so reach out for an individualized analysis of your case.Information Center
- What Are “Weapons” In New Jersey?
- Possession Of A Weapon For Unlawful Purposes, N.J.S.A. 2C:39-4
- Unlawful Possession Of Weapons, N.J.S.A. 2C:39-5
- Possession Of Weapons During Drug Offense, N.J.S.A. 2C:39-4.1
- Firearms On School Property, N.J.S.A. 2C:39-5e
- Certain Persons Not To Have Weapons, N.J.S.A. 2C:39-7
- Domestic Violence And Weapons Possession
- Possession Of A Defaced Firearm, N.J.S.A. 2C:39-3d
- Will I Go To Jail For A Weapons Possession Charge In New Jersey?
- What If I Have A Valid Gun Permit From Another State?
- Federal Possession Of A Firearm By A Prohibited Person, 18 U.S.C. § 922(g)
- Federal Firearm In A School Zone, 18 U.S.C. § 922(q)(2)
- Federal Possession Of A Firearm In Relation To A Federal Drug Felony Or Violent Crime, 18 U.S.C. §924(c)
- Federal Possession Of An Illegal Firearm, 26 U.S.C. §5861
- Will I Go To Prison For Federal Possession Charges?
- Can I Be Charged With Both State And Federal Weapons Charges?
- Can You Defend Against New Jersey Weapons Possession Charges?
- Can I Plead Guilty To Lesser Charges?
- What Should I Do If I Get Caught With A Gun?
- Why Should I Choose Tara Breslow-Testa And Associates?
- Contact A New Jersey Weapons Possession Lawyer Today
Weapons include anything which can easily inflict serious bodily injury or death, such as:
- Brass knuckles
- Stun guns
- Other dangerous implements
New Jersey law criminalizes using a weapon unlawfully against another person or their property. This law does not require that you go through and commit any crime with the weapon. Possession plus unlawful purpose is usually enough.
For example, you might be caught pointing a gun at a house but not firing it. That’s enough for a conviction under this law because your intent to use the gun unlawfully is obvious.
Another example is having weapons in your car as you drive to someone’s house. Other people in the car might testify you intended to use the weapons in an attack. This evidence might be enough to get a conviction, even if you never used the weapon to hurt anyone.What Are The Penalties For Possession Of A Weapon For Unlawful Purposes?
The penalties will depend on the type of weapon used:
- Firearms. Second-degree crime that carries 5-10 years in prison and a maximum $100,000 fine as a penalty.
- Imitation firearms. It’s a crime of the fourth degree if a person would reasonably believe the imitation firearm was the real thing.
- Explosives. Second-degree crime, 5-10 years in prison, and a maximum $100,000 fine.
- Other weapons. These include bats, clubs, knives, brass knuckles, etc. Third-degree crime, 3-5 years in prison, and a maximum $15,000 fine.
These are the penalties for a first-time offense. If you have prior convictions, then you could receive even more severe penalties. Contact our New Jersey weapons possession lawyer to analyze the penalties you face.
It is illegal to knowingly possess certain weapons even if you never intend to use them unlawfully. For example, you might need a permit to carry a firearm legally. If you don’t have the necessary permit, then your possession is illegal. Other weapons are simply illegal to have under any circumstances. Let’s look closely at what this law prohibits:
- Machine Guns. You cannot have possession of a machine gun unless you have a license to carry one. A machine gun can deliver bursts of fire with a single trigger pull. Possession of a machine gun without a license is a second-degree crime, carrying 5-10 years in prison as a penalty.
- Assault Firearms. Possession of an assault firearm without a license is a second-degree crime, with 5-10 years in prison.
- Rifles and Shotguns. Possession of either a shotgun or rifle without a firearms identification card is a third-degree crime, with penalties of 3-5 years in prison and a maximum $15,000 fine.
- Handgun. If you have a handgun without a permit, you have committed a second-degree crime, with penalties of 5-10 years in prison and a maximum $15,000 fine.
- Other Weapons. You can be convicted for having other weapons in circumstances where you obviously should not have them. Conviction is for a fourth-degree crime, which means up to 18 months in prison.
It is illegal to have possession of a weapon when committing or attempting to commit a drug crime. The punishment will depend on the weapon. If you have a firearm, then possession is a second-degree crime.
With respect to other weapons, you can also face second-degree charges. However, the state needs to show you intended to use the weapon unlawfully or had possession of it in circumstances where you shouldn’t have.
If you knowingly have a firearm on school property without written authorization from the institution, you are guilty of a crime of the third degree, regardless of whether you have a valid permit or an ID card.
- Elementary school
- Secondary school
- Technical school
- Other educational institutions
Even carrying an imitation firearm is illegal on school property and on school buses. Unless you have written permission from the institution’s presiding officer, you can be convicted of a disorderly persons offense.
Certain people cannot have possession of a weapon because of something in their history. New Jersey has a law called Certain Persons Not to Have Weapons. You might violate this law if any of the following is true:
- Prior convictions for serious crimes. Convictions for crimes like arson, aggravated assault, kidnapping, homicide, robbery, aggravated sexual assault, and terroristic threats mean you cannot have possession of a weapon.
- Mental disorder. If you have been committed to a mental institution, you normally cannot possess a weapon.
Your charges will depend on the weapon you are caught with. If it is a firearm, then it is a crime of the second degree, with penalties of 5-10 years in prison. You will also have a minimum confinement of 5 years.
If you are caught with a non-firearm, then you have committed a crime of the fourth degree, which can net you up to 18 months in prison.
It is illegal for you to have possession of a firearm or ammunition if any of the following apply:
- You have been convicted of a disorderly persons domestic violence offense.
- You had firearms seized pursuant to a domestic violence protective order.
- You are prohibited from possessing firearms under the Extreme Risk Protective Order Act of 2018.
Possession of a firearm or ammunition is a crime of the third degree, which means 3-5 years in prison and a maximum $15,000 fine.
You can face fourth-degree crime charges if you have possession of a firearm that has been defaced. This would result in penalties of up to 18 months in state prison.
Quite possibly. New Jersey passed the Graves Act to create mandatory minimum sentences without eligibility for parole for certain firearm offenses. This means you will be spending some time in jail if you are convicted of possessing a:
- Machine gun
- Sawed-off shotgun
- Defaced firearm
In particular, judges must sentence you to serve between one-third and one-half of your sentence or three years, whichever is longer. So if you receive a 10-year sentence, then you might spend at least 5 years in prison before you are eligible for parole. These mandatory minimums show that New Jersey takes these firearm offenses seriously.
You will probably be subject to the Graves Act for any of the following convictions:
- Second-degree unlawful possession of handguns, machine guns, rifles, or shotguns.
- Third-degree possession of a sawed-off shotgun.
- Fourth-degree crime of owning a defaced firearm.
- Second-degree possession of a firearm while committing drug crimes.
- Second-degree possession of a firearm as a person not to have weapons.
If you are convicted of a different weapons offense, you might still see jail time. It all depends on the facts of the case, as well as your criminal history.
New Jersey does not recognize permits from other states. To possess a firearm in New Jersey, you must have a permit issued by our state government. Many people have no idea and simply assume their out-of-state permit is valid in New Jersey.
Unlawful possession of a firearm is a second-degree crime subject to the Graves Act. This means you could face a mandatory 5 years in prison for innocently bringing your gun into the state.
Fortunately, the Attorney General decided that it was unfair to imprison someone for an honest mistake. Many law-abiding people have guns and might bring them to New Jersey in good faith. For this reason, the Attorney General has decided that defendants in this situation might qualify for Pretrial Intervention Program (PTI), which is a diversion program. You can have your charges dismissed if you successfully complete a probation period.
To be clear: it is still illegal to possess a firearm in New Jersey without a valid New Jersey permit. However, you might qualify for PTI, which can keep you out of prison. There are qualifications, however, and not all out-of-state residents will qualify.
- Clean criminal history
- Pose little risk to others
- Inform the police you have the firearm
- Be unaware that having the firearm in New Jersey is against the law
If you don’t meet these requirements, you can face time in prison.
It is a federal crime to knowingly possess a firearm if you are prohibited from doing so. The following people are prohibited:
- Convicted felons
- Drug users/addicts
- Illegal and non-immigrant aliens
- Someone committed to a mental institution or adjudged as mentally defective
- Someone subject to a domestic violence restraining order
- Someone with a prior misdemeanor domestic violence conviction
- Servicemember dishonorably discharged from service
- Fugitive from justice
To be convicted, the firearm must have traveled across state lines at some point in time.
Penalties for this federal conviction are very steep and include up to 10 years in federal prison. If you have three or more convictions for violent felonies, you can face up to 15 years in prison without parole.
You can face up to 5 years in federal prison for this misdemeanor offense if the firearm had traveled across state lines.
You can also face enhanced federal penalties if you possess a firearm during a drug offense or a violent crime. In addition to whatever punishment you get for the drug or violence offense, you can face a minimum of 5 years in prison for possession of a firearm.
However, punishments increase if you possessed a short-barreled rifle or shotgun or a semiautomatic weapon. Then you are facing a minimum of 10 years in prison.
Similarly, if you possessed a machine gun or a firearm equipped with a muffler or silencer, you are facing a minimum of 30 years in prison.
This additional time in prison gets tacked onto the end of your sentence. It does not run concurrently. You also cannot receive probation for these convictions.
The federal government regulates certain weapons which are dangerous, such as machine guns, sawed-off rifles or shotguns, and other destructive devices. It requires that importers and manufacturers register every qualifying firearm they either manufacture or import. It is illegal to:
- Possess a firearm that is imported, transferred, or manufactured illegally
- Possess a firearm with a removed or obliterated serial number
- Possess a firearm missing the required serial number
If you are convicted of illegal possession, then you face up to 10 years in federal prison for violating the law.
It is very possible. Your sentence will depend on the charges you face. The Graves Act, mentioned above, only applies to state weapons charges. But the federal government is just as aggressive when pursuing gun crimes.
Some federal laws have mandatory minimum and maximum sentences. However, a judge uses the advisory guidelines to determine the sentence. Many factors go into this calculation, including the number of guns you were caught with and your criminal history. Employment or positive contributions to your community can also reduce a sentence.
An experienced attorney can make a big difference in whether you go to federal prison and for how long.
Possibly. It depends on if the firearm traveled across state lines at some point:
- If the weapon did, you can face both federal and state charges.
- On the off chance the firearm was made in New Jersey and has stayed in the state, you would face only state charges.
Why the difference? Essentially, the federal government doesn’t have a general police power to prohibit firearm possession. But the federal government can regulate the movement of objects across state lines. So if the gun moved across state lines at any point—even before you got possession of it—federal law applies.
We can raise any defense which has strong factual support. In other words, we need to first analyze the charges against you to determine what defense to bring.
Here are a few defenses we often raise on behalf of defendants facing state or federal charges.Lack Of Intent
Most weapons charges require knowing that you have possession of the weapon. For example, you might have borrowed someone’s car, and there is a defaced weapon in the trunk. Since you didn’t know it was there, you did not have the required intent.
The same thing is true if you are carrying someone’s purse or backpack and there is a weapon inside. Your lack of knowledge means you didn’t break the law.
Prosecutors look at all circumstances to judge intent. The prosecution does not require you to have admitted knowledge. For example, you might regularly drive your neighbor’s car. You know he belongs to a gang and has weapons as a convicted felon. You have seen weapons in the trunk of this car before. In this case, knowledge, and therefore, intent may be inferred.Lack Of Possession
We sometimes raise this defense. You can not be convicted of possession if you do not actually possess the weapon. However, possession doesn’t require that you have the weapon in your hand. You can exercise possession when it is in your home or vehicle. You can also possess a firearm that is within reach.Illegal Search
Police sometimes find weapons only after an illegal search through your possessions. Under the Constitution, police need probable cause to search your person or property. Probable cause means more than a guess. Instead, police need some solid proof that you have committed a crime or are about to. For example, they might have testimony from someone who saw guns in your garage. That might be enough proof to get a search warrant.
Often, police find weapons as part of a traffic stop. They might pull you over for a traffic violation like a blown headlight. They start asking questions, and before you know it, they are looking through your trunk.
You can consent to a search, which means police don’t need probable cause. However, many people refuse to consent. The police then search anyway. If their search was not supported by probable cause, we could ask a judge to suppress the evidence.Not In A School Zone
The prosecutor needs to show you had the weapon in a school zone (if that’s the charge). Catching you a mile down the road with the weapon might not be good enough.Exemption From The Law
N.J.S.A. 2C:39-6 has a long list of exemptions from the law. A sampling includes:
- Members of the National Guard or Armed Forces, if on duty
- Federal law enforcement officers
- State police
- Sheriff or undersheriff
- County prosecutor
- State correctional police
We will check to see if you are exempted from state possession laws. Some criminal charges stem from a misunderstanding about whether you are exempt.
That might be an option. Attorney Breslow-Testa typically tries to get charges dismissed, for lack of evidence or for another reason. When that’s not possible, she will consider whether a plea deal is favorable. By pleading guilty, you might avoid prison or at least get a shorter sentence. Never try to negotiate your own plea deal.
We recommend not answering police questions. The less information you give the police, the better. Instead, tell the police you want to remain silent and contact a lawyer.
Anyone accused of a weapons possession offense should have an experienced criminal defense attorney in their corner. You might be tempted to go with a public defender, which is a mistake, because those lawyers are often overworked and can’t commit fully to your case.
Attorney Breslow-Testa is one of the most seasoned New Jersey criminal defense attorneys. She can immediately review the illegal gun possession / illegal weapon possession charges and clarify your legal rights and options.
Unlike some other lawyers, she can handle both state and federal possession charges. This means you won’t have to switch lawyers if both New Jersey and the federal government prosecute you.
Attorney Tara Breslow-Testa is highly experienced with gun laws. She believes all people facing a gun possession charge deserve a passionate defense. She established her firm to help men and women accused of crimes defend themselves when the whole world is stacked against them. She uses her broad knowledge of the law to fight for her client’s rights and holds the government to its burden of proof.
If you are facing weapons charges, you need an experienced weapon / gun possession lawyer right now. The “War on Guns” has only ratcheted up. Many innocent people get caught up in crime, and they might have no idea a gun was present. You shouldn’t face decades behind bars for one small mistake.
Attorney Breslow-Testa can meet for a free consultation anywhere. Please call the firm at (732) 784-2880 or send an email message.