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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
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Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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HI Fran. Below you answered my question and in the answer it

Resolved Question:

HI Fran. Below you answered my question and in the answer it says:
"and was found to have been in possession of a firearm at the time of the commission of the offense;"
So what if was not in possession of a firearm at the time of the offense?

(2) possession of any firearm by a person who has been convicted of a person felony or a violation of any provision of the uniform controlled substances act under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony or violation, or was adjudicated a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a person felony or a violation of any provision of the uniform controlled substances act, and was found to have been in possession of a firearm at the time of the commission of the offense;
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 years ago.
HiCustomer

The time of the offense is the time of the possession, not the time of the arrest. So you may not have the gun on you at the time you get arrested for the crime, but that doesn't mean that the arrest is unlawful or that you can't be prosecuted for it. You may be able to use as your defense (if you go to trial) that you were never in possession and that there is not and never was any gun. Whether a jury will believe that is another matter and will depend on the facts as alleged at trial.

There is also such a thing as the theory of "constructive possession." For example, you and your friends are going hunting, and there are firearms in the trunk of the car. The car gets stopped for whatever reason, and the rifles are discovered. You have a felony conviction, and you will get arrested for possession of a firearm, because you're in the car, the guns are in the car, and you're not supposed to have anything to do with guns. (This theory of constructive possession would apply to a gun found somewhere in your house as well).

At trial, the legal presumption that you possessed the firearm could fail, if the state can't make out its burden to show that you knew the guns were in the car and that you were in a position to take custody and control over the weapon. On the other hand, you could end up convicted.

I think this answers your question,but if not, let know.

_____

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

Edited by FranL on 12/2/2009 at 5:00 PM EST
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16084
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
Hi Fran. Thank you. I please allow me to clarify what i am asking just a bit.
if i had a possesion of cocaine 9 years ago, and no gun was involved, if i wanted to own a gun today in kansas, could i?
i think further study of the law prohibitiing gun ownership in kansas says something about if the offense was more than five years ago.
9 years ago i had the cocaine possesion charge, one in kansas, one in texas. The one in kansas is expunged. the one in texas is still on my record.
but i think further reading of the statute that you referance seems to imply that living in kansas, i might be ok to own a gun.
if the offense was more than five years ago and took place in kansas.
or if the offense was in another state, under the same circumstances.
I understand this mihgt require you looking again at the statute that you had originally referanced and do not mihgt paying you another 30 and understand this would now be $60.
Thank you
Rick
Expert:  Zoey_ JD replied 4 years ago.
Rick,

I'll look closer and get back to you shortly.
Expert:  Zoey_ JD replied 4 years ago.
Hi Rick,

I see what is concerning you. Under section (3) of the statute, it does appear that you would have gun rights in Kansas. However, your offense is a drug conviction and would come under (2). You are merging the two provision, and I don't think the provisions are meant to be merged. The statute specifically sets apart those cases which would fall under the Uniform Controlled Substances Act. They need not have done that if they didn't want to make that a stand-alone provision. They could have stricken it from the statute altogether and just let you get your rights restored in 5 years.

Additionally, as you still have the Texas felony on your record, even if you would be okay under Kansas law via your theory, you would be barred from possession of a weapon under Federal law because of the Texas conviction. I know it's not what you want to hear, but I am going to stand by my original position.

You will need to get your Texas felony set aside and your gun rights restored. I don't know how feasible that will be, but that's the only chance I see.

_____

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.



Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16084
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you

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