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