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GENERAL PRACTICE LAW FIRM

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Drugs and Guns and Laws.. Oh My!

Posted on February 23, 2018 at 1:37 PM Comments comments (5543)
A good thing to know, especially if you are a gun carrying Arkansan, is that if you have a felony amount of narcotics and a firearm that you are subject to Arkansas Code Annotated 5-74-106. Simultaneous Possession of Drugs and Firearms (herein referred to as “Simultaneous”), a Class Y felony in the State of Arkansas punishable by 10-40 years in prison or Life without the possibility of parole, and/or up to a $25,000.00 fine. Now this law has a few different facets, however with the recent changes to Arkansas law regarding marijuana I have decided to discuss what I would call the “iron circle of simultaneous possession”. Let me explain:
 
In this hypothetical we have a person with an ounce (approx. 28 grams) of marijuana, a schedule VI controlled substance, no prior convictions for possessing a schedule VI substance, and that person also has a gun on his/her person.  Now looking at the statutes listed below, specifically 5-64-419, that is a misdemeanor possession. According to the law regarding Simultaneous, you cannot be convicted of Simultaneous with a misdemeanor amount of a controlled substance. So one would think that possessing that amount of marijuana and a gun would not lead to a Simultaneous charge, but… look at 5-64-436. That law states that if you have more than 14 grams with the purpose to deliver that substance then it is a Class D felony charge, meaning that if a person has the ounce of marijuana as described in this hypothetical and it is with purpose to deliver than it is subject to Simultaneous. Now one would ask, “what makes it purpose to deliver”? In response to that question we look at the statute and we notice 5-64-436 (a)(4), which state that purpose to deliver can be shown if the person in possession of the schedule VI substance also possesses a firearm that is in the immediate physical control of the person at the time of the possession of the Schedule VI controlled substance, meaning that the gun makes the drugs a felony and the felony drugs and guns lead to Simultaneous, this snowball effect is the iron circle that I referred to earlier. Having the gun makes the drugs a felony (without it that amount of drugs might not be a felony), and having a felony amount of drugs makes the crime Simultaneous. Moral of the story is two-fold, 1) things snowball quickly in these situations and an amount of marijuana that might lead to a ticket is now a felony punishable by life in prison, and 2) do not have more than 14 grams of marijuana and a gun or you will likely get charged with Simultaneous.
 
All of the relevant law is listed below:
 
 
5-74-106. Simultaneous possession of drugs and firearms.
(a)  A person shall not unlawfully commit a felony violation of §§ 5-64-419 -- 5-64-442 or unlawfully attempt, solicit, or conspire to commit a felony violation of §§ 5-64-419 -- 5-64-442 while in possession of:
(1)  A firearm; or
(2)  Any implement or weapon that may be used to inflict serious physical injury or death, and that under the circumstances serves no apparent lawful purpose.
(b)  Any person who violates this section is guilty of a Class Y felony.
(c)  This section does not apply to a misdemeanor drug offense.
(d)  It is a defense to this section that the defendant was in his or her home and the firearm or other implement or weapon was not readily accessible for use.
 
5-64-419. Possession of a controlled substance.
(a)  Except as provided by this chapter, it is unlawful for a person to possess a controlled substance.
(b)  A person who violates this section with respect to:
(5)  A Schedule VI controlled substance with an aggregate weight, including an adulterant or diluent, of:
(A)  Less than four ounces (4 oz.) upon conviction is guilty of a Class A misdemeanor;
(B)  One ounce (1 oz.) or more but less than four ounces (4 oz.) and the person has four (4) previous convictions under this section or the former § 5-64-401(c) upon conviction is guilty of a Class D felony;
(C)  Four ounces (4 oz.) or more but less than ten pounds (10 lbs.) upon conviction is guilty of a Class D felony;
(D)  Ten pounds (10 lbs.) or more but less than twenty-five pounds (25 lbs.) upon conviction is guilty of a Class C felony;
(E)  Twenty-five pounds (25 lbs.) or more but less than one hundred pounds (100 lbs.) upon conviction is guilty of a Class B felony; or
(F)  One hundred pounds (100 lbs.) or more but less than five hundred pounds (500 lbs.) upon conviction is guilty of a Class A felony.
 
5-64-436. Possession of a Schedule VI controlled substance with the purpose to deliver.
(a)  Except as provided by this chapter, it is unlawful if a person possesses a Schedule VI controlled substance with the purpose to deliver the Schedule VI controlled substance. Purpose to deliver may be shown by any of the following factors:
(1)  The person possesses the means to weigh and separate a Schedule VI controlled substance;
(2)  The person possesses a record indicating a drug-related transaction;
(3)  The Schedule VI controlled substance is separated and packaged in a manner to facilitate delivery;
(4)  The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of the Schedule VI controlled substance;
(5)  The person possesses at least two (2) other controlled substances in any amount; or
(6)  Other relevant and admissible evidence that contributes to the proof that a person's purpose was to deliver a Schedule VI controlled substance.
(b)  A person who violates this section upon conviction is guilty of a:
(1)  Class A misdemeanor if the person possessed by aggregate weight, including an adulterant or diluent, fourteen grams (14g) or less of a Schedule VI controlled substance;
(2)  Class D felony if the person possessed more than fourteen grams (14g) but less than four ounces (4 oz.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance;
(3)  Class C felony if the person possessed four ounces (4 oz.) or more but less than twenty-five pounds (25 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance;
(4)  Class B felony if the person possessed twenty-five pounds (25 lbs.) or more but less than one hundred pounds (100 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance; or
(5)  Class A felony if the person possessed one hundred pounds (100 lbs.) or more but less than five hundred pounds (500 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance.
 

*Disclaimer: This blog is not legal advice, but a general explanation of the law that is not specific to your case, if you have one. If you have questions concerning your rights, a recent police interaction or any other legal issue please contact either General Practice Law Firm or another attorney for a proper application of the law to your case.

Are Arkansans Getting Carried Away? (with gun rights)

Posted on October 3, 2013 at 12:04 PM Comments comments (97)
There has been a lot of talk about the "technical corrections" made to the offense 5-73-120, carrying a weapon.. Most of this talk concerns whether or not open carry now exists in Arkansas, despite a bill allowing such not passing during the same year in which the "technical corrections" bill did pass. The new law is already in effect and has been since July. Prior to the new changes coming into effect, the Attorney General of the State of Arkansas issued an opinion stating that the new changes did not permit open carry. However, his opinion simply addressed the clarification of "journey", a word previously without hard definition when it came to this law. Now the definition of "journey" is clearly defined as "travel beyond the county in which a person lives". The question proposed to the Attorney General concerned this provision, and his opinion was based on this provision alone. The actual provision which makes way for open carry is below:

5-73-120.  Carrying a weapon.

  (a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.

The addition of the word "unlawfully" is what the big deal is about. Prior to the addition of that word the statute read like this :

" a purpose to employ the handgun, knife, or club as a weapon against a person"

The difference here is monumental. First the previous definition did not differentiate between the purpose for employing the weapon. This meant that as long as you had a weapon described in the statute (i.e. rifles, not "a barrel length of less than twelve inches", did not apply), and you had any purpose of using it against a person (not wild dogs, but homo sapiens) you are guilty of this offense. FYI- carrying a handgun to defend yourself against a person was illegal under the previous law. Now that the word "unlawfully" is placed in the statute if the purpose for carrying the weapon is to employ it against a person in lawful self defense, those actions would not be in violation of the law ;every one gets to carry a weapon for self defense unless another law prohibits such, i.e. no guns at schools, no guns for felons, etc. Now the tricky part.

No Court has ruled upon this statute in its newest incarnation. A Court may find that the law did not have the effect we just described. There is an argument to be made that the law never intended this and those who make that argument will point to the failure of the open carry bill and the title of this bill only stating that it was to make "technical corrections". However, this would be hard as the plain language of the law is what must be looked at first and it seems to be unambiguous (no ambiguity = no further review). Also, if a Court did some how get around the plain language, a defendant would still have the argument that it is an unconstitutionally vague. Overall the law works like this- if there is no law prohibiting the action the action is legal (please note not all law is statutory). In the case here there no appears to be no law prohibiting the carry of a weapon, concealed or not, in non-prohibited places, by non-prohibited people, for lawful purposes (including self defense). Full statute below:

5-73-120.  Carrying a weapon.

  (a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.

(b) As used in this section:

   (1) "Club" means any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking, including a blackjack, billie, and sap;

   (2) "Handgun" means any firearm with a barrel length of less than twelve inches (12'') that is designed, made, or adapted to be fired with one (1) hand;

   (3) "Journey" means travel beyond the county in which a person lives; and

   (4) "Knife" means any bladed hand instrument three inches (3'') or longer that is capable of inflicting serious physical injury or death by cutting or stabbing, including a dirk, a sword or spear in a cane, a razor, an ice pick, a throwing star, a switchblade, and a butterfly knife.

(c) It is permissible to carry a handgun under this section if at the time of the act of carrying a weapon:

   (1) The person is in his or her own dwelling or place of business or on property in which he or she has a possessory or proprietary interest;

   (2) The person is a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties;

   (3) The person is assisting a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties pursuant to the direction or request of the law enforcement officer, correctional officer, or member of the armed forces;

   (4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person's checked baggage and is not a lawfully declared weapon;

   (5) The person is a registered commissioned security guard acting in the course and scope of his or her duties;

   (6) The person is hunting game with a handgun that may be hunted with a handgun under rules and regulations of the Arkansas State Game and Fish Commission or is en route to or from a hunting area for the purpose of hunting game with a handgun;

   (7) The person is a certified law enforcement officer;

   (8) The person is in possession of a concealed handgun and has a valid license to carry a concealed handgun under § 5-73-301 et seq., or recognized under § 5-73-321 and is not in a prohibited place as defined by § 5-73-306;

   (9) The person is a prosecuting attorney or deputy prosecuting attorney carrying a firearm under § 16-21-147; or

   (10) The person is in possession of a handgun and is a retired law enforcement officer with a valid concealed carry authorization issued under federal or state law.

(d) Carrying a weapon is a Class A misdemeanor.



*Disclaimer:This blog is not legal advice, but a general explanation of the law that is not specific to your case, if you have one. If you have questions concerning your rights, a recent police interaction or any other legal issue please contact either General Practice Law Firm or another attorney for a proper application of the law to your case.

The Quest For Open Carry in Arkansas

Posted on February 28, 2013 at 1:57 PM Comments comments (109)
On Tuesday, February, 28, 2013, a bill to allow handguns to be openly carried in Arkansas made its way to the House Judiciary Committee.  Although the bill originally called for open carry of handguns with few restrictions, the version that was voted on by the House Judiciary Committee had been watered down to the point of simply asking for the open carry of handguns in non-incorporated areas (meaning outside city limits) and protecting Arkansas citizens with valid Concealed Carry Licenses (CCL) from being prosecuted in the event they inadvertently display their concealed carry weapon.   Despite these changes, the bill failed to make it out of committee with a vote of nine in favor and ten opposed.  The bill’s sponsor, Representative Sue Scott of Rogers, is committed to providing Arkansas citizens with the right to open carry, however she faces opposition from a variety of police departments and police lobbying organizations, in addition to House Speaker Davy Carter and Governor Mike Beebe.   However, while the right to open carry has not been granted, citizens of Arkansas who qualify still maintain the right to apply for and upon receipt carry a concealed handgun.   While there is substantial state law on this matter, the general statute that discusses requirements for a CCL is found at Arkansas Code Annotated  § 5-73-309 and can be found at http://www.lexisnexis.com/hottopics/arcode/Default.asp

No Armor For You (Felon)

Posted on January 7, 2013 at 11:54 AM Comments comments (95)
It is illegal under Arkansas law for a person convicted of the following crimes to possess body armor (bullet proof body armor to be specific):

  (1) Capital murder, § 5-10-101;

   (2) Murder in the first degree, § 5-10-102;

   (3) Murder in the second degree, § 5-10-103;

   (4) Manslaughter, § 5-10-104;

   (5) Aggravated robbery, § 5-12-103;

   (6) Battery in the first degree, § 5-13-201; or

   (7) Aggravated assault, § 5-13-204.

Furthermore it is illegal under federal law for a felon to possess body armor if the felony was:
(1) a crime of violence (as defined in section 16); or
(2) an offense under State law that would constitute a crime of violence under paragraph (1) if it occurred within the special maritime and territorial jurisdiction of the United States.

So remember, if you have a felony within the categories listed (either under federal or Arkansas law) you cannot possess body armor (of the bullet proof variety). Relevant statutes listed below.

Arkansas Code Annotated
5-79-101.  Criminal possession of body armor.

  (a) No person may possess body armor if that person has been found guilty of or has pleaded guilty or nolo contendere to any of the following offenses:
   (1) Capital murder, § 5-10-101;
   (2) Murder in the first degree, § 5-10-102;
   (3) Murder in the second degree, § 5-10-103;
   (4) Manslaughter, § 5-10-104;
   (5) Aggravated robbery, § 5-12-103;
   (6) Battery in the first degree, § 5-13-201; or
   (7) Aggravated assault, § 5-13-204.
(b) As used in this section, "body armor" means any material designed to be worn on the body and to provide bullet penetration resistance.
(c) A violation of this section constitutes a Class A misdemeanor.

18 U.S.C. § 931 : US Code - Section 931: 
Prohibition on purchase, ownership, or possession of body armor by violent felons

(a) In General. - Except as provided in subsection (b), it shall be unlawful for a person to purchase, own, or possess body armor,if that person has been convicted of a felony that is -(1) a crime of violence (as defined in section 16); or
(2) an offense under State law that would constitute a crime of violence under paragraph (1) if it occurred within the special maritime and territorial jurisdiction of the United States.(b) Affirmative Defense. -
(1) In general. - It shall be an affirmative defense under this section that -
(A) the defendant obtained prior written certification from his or her employer that the defendant's purchase, use, or possession of body armor was necessary for the safe performance of lawful business activity; and
(B) the use and possession by the defendant were limited to the course of such performance.
(2) Employer. - In this subsection, the term "employer" means any other individual employed by the defendant's business that supervises defendant's activity. If that defendant has no supervisor, prior written certification is acceptable from any other employee of the business.

This blog is not legal advice, but a general explanation of the law that is not specific to your case, if you have one. If you have questions concerning your rights, a recent police interaction or any other legal issue please contact either General Practice Law Firm or another attorney for a proper application of the law to your case.

Misdemeanor Conviction = No Guns For Life

Posted on December 31, 2012 at 12:56 PM Comments comments (124)
Many people do not know this, but it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence (in Arkansas the most common misdemeanor domestic violence crime is domestic battery in the third degree), to possess a firearm. This is a federal statute, which means that it supersedes any relevant state statute to the contrary. What the statute means is that if a person has been found guilty or have plead guilty/no contest to a crime of domestic violence (even a misdemeanor) that person has lost the right to possess a fire arm for life. Also if a person is currently subject to an order of protection, it is unlawful for that person to possess a firearm. Finally there is no legal duty for a prosecutor to reveal this consequence to a person during or after any investigation/plea/trial. The relevant statutes are below:

18 U.S.C. § 922 
(g) It shall be unlawful for any person -
(8) who is subject to a court order that -
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

This blog is not legal advice, but a general explanation of the law that is not specific to your case, if you have one. If you have questions concerning your rights, a recent police interaction or any other legal issue please contact either General Practice Law Firm or another attorney for a proper application of the law to your case.

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