Imagine that you are pulled over by the San Diego Police and have a loaded gun in the trunk of your car. What are your rights? Is the police officer allowed to inspect your firearm? Are you allowed to refuse this inspection? Pursuant to the fourth amendment of the U.S. constitution all citizens are guaranteed the right to be free from unreasonable government searches and seizures of their persons, homes, businesses, and property but upon probable cause, supported by an oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. Probable cause requires that law enforcement have evidence that would lead a reasonable person to believe that you have in fact committed a crime. In California, Penal Code section 25850 authorizes police officers to examine your firearm if you are carrying a loaded firearm in a public place. This means that a police officer is authorized to examine the firearm you are carrying in your vehicle while in a public street. It is very important that you understand that if you refuse to allow San Diego police to inspect your gun, your refusal will constitute probable cause to arrest you for carrying a loaded firearm. This is why it is essential for you to hire a criminal defense lawyer that is well versed in the complexities of carrying a loaded firearm laws in the state of California. At Monder Law Group, our firm prides itself on our extensive knowledge and years of experience handling firearm criminal cases and warrant recall in San Diego.
Understanding Penal Code Section 25850
Penal Code section 25850 makes it clear that “any person who carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory is guilty of carrying a loaded firearm.” This means that police officers are authorized to inspect your firearm to determine whether or not the firearm is loaded for the purpose of enforcing this section.
In order to prove that you were carrying a loaded firearm in violation of Penal Code section 25850, the prosecutor in your case must prove beyond a reasonable doubt that you:
Were carrying a loaded firearm on your person or in a vehicle;
Knew that you were carrying a firearm;
Were carrying a in a public place or on a public street; and
The public place or street was an area within an incorporated city; or
An unincorporated area where it was unlawful to discharge a firearm.
What is a firearm?
A firearm is any device designed to be used as a weapon, that discharges a projectile through a barrel by the force of a combustion.
Example: Handguns, revolvers, shotguns, and pistols
When is a firearm loaded?
Under Penal Code section 25850 a firearm is loaded when there is an unexpended cartridge consisting of a case that holds a charge of powder and a bullet.
What does it mean to be carrying?
Under Penal Code section 25850 a firearm is carried either on your person or in a vehicle while in a public place or street.
What is a public place?
Under Penal Code section 25850 a public place is any location that is readily accessible to the public.
Example: Public street, sidewalks, parking lots, and parks.
Persons Ineligible to Carry a Loaded Firearm
Under Penal Code section 25850 there are three groups of people:
Narcotic drug addicts
Anyone convicted of two or more misdemeanor brandishing a firearm convictions.
Persons Allowed to Carry a Loaded Firearm
Under Penal Code section 25850 there are six groups of people exempted:
Concealed weapon permit holders;
Active military personnel;
Police officers on duty;
Correction officers on duty;
Authorized security guards on duty;
Honorably retired peace officers;
Recreational shooters carrying firearm in locked
Penalties for Carrying a Loaded Firearm in California
California carrying a loaded firearm charges are considered wobblers and can be filed by the issuing district attorney as either a misdemeanor or a felony. Generally, California carrying a loaded firearm charges are considered misdemeanors.
A misdemeanor conviction for carrying a loaded firearm in a public place can result in:
Sentence to county jail for up to 364 days; and
A maximum fine of $1,000.
However, the District Attorney’s Office will make the determination to wobble up if the following aggravating factors are present:
You were not the registered owner of the firearm;
You knew you were carrying a stolen firearm; or
You had reasonable cause to believe that the firearm was stolen;
You are part of a gang; or
You have a prior criminal record.
A felony conviction for carrying a loaded firearm in a public place can result in:
Sentence to state prison for 16 months, two or three years;
A maximum fine of $10,000;
Up to one year of formal probation;
Loss of right to own weapons;
Temporary loss of fourth amendment right; and
Immigration Consequences of a Conviction for Carrying a Loaded Firearm
Title 8 U.S. Code section 1227(a)(2)(C) establishes that “any alien who at any time after admission is convicted under any law of purchasing, selling, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any destructive device in violation of any law is deportable.” This means that if you are not a U.S. citizen and are currently facing charges for carrying a loaded firearm or have received a conviction for carrying a loaded firearm in a public place, you are considered a deportable alien. For immigration purposes, any conviction pertaining to firearms will be considered grounds for deportation. This is why it is crucial that you hire an attorney who is both skilled in criminal firearms defense and knowledgeable on the nuances of immigration deportation laws. Our San Diego criminal defense firm has vast experience handling firearms cases that have immigration implications, give us a call today so that we may begin preparing the best defense for your specific needs.
Defenses for Carrying a Loaded Firearm
These are some of the criminal defenses that we can assert on your behalf to help you overcome the sentencing for carrying a loaded firearm in a public place under Penal Code section 25850:
You did not know the firearm was present;
You were not carrying a firearm;
The firearm was not loaded;
You were not in a public place.
Carrying a Loaded Firearm Criminal Lawyer in San Diego
Carrying a loaded firearm in a public place carries serious consequences. You need to hire a criminal defense attorney who understands the implications of California penal code section 25850 to your federal constitutional fourth amendment rights. As a gun enthusiast, attorney Vik Monder knows first-hand what is at stake when you are facing firearm charges in San Diego and is determined to hold the government accountable. Attorney Monder will protect your federal constitutional right to privacy by thoroughly examining the evidence against you in search of any law enforcement misconduct. If attorney Monder finds that law enforcement lacked probable cause to inspect your firearm, he will work zealously to protect you against this unreasonable government intrusion by filing a suppression motion to keep out the unlawful evidence found as a result of the unlawful search, seizure or arrest. Ensure your best defense by contacting San Diego firearms criminal defense attorney Vik Monder at the onset of your case!