Hi, Judy. Thank you for the update.
Q) The cops pulled me over for a broken third tail Light. Then he said he smelled weed
Let me guess, there wasn't a bit of weed in the car? How many times have I heard this lie from a cop... (ugh!)
Q) He searches my car and finds a loaded firearm under his seat they put him in cuffs. He stated he didn't know nothing about it which is true
Under Virginia law, mere proximity to something is not enough to prove possession. To prove felon in possession of a firearm
, the Commonwealth has to show that the possessor (your BF) 1) was aware of the presence of the gun, 2) was aware of its nature (i.e. that it is, in fact, a gun), 3) that the gun is an actual firearm (i.e. an object designed to expel a projectile through means of an explosion), 4) that your BF exercised some dominion and control over the gun, and 5) that your BF was a convicted felon at the time he allegedly possessed the firearm.
If the Commonwealth can prove all of these elements beyond a reasonable doubt to the judge or jury, your BF will be convicted. If your BF's prior felony is violent
, the sentence
is 5 years mandatory; if the prior felony is non-violent but occurred within the last 10 years, the sentence is up to 5 years with a minimum mandatory sentence of 2 years. If the felony is non-violent and outside the 10 year time frame, the maximum punishment is 5 years but there is no mandatory minimum sentence to serve.
It sounds like the Commonwealth will have a problem with proof on elements 1 and 4 listed above. He could win on one or both of those alone, irrespective of whether you or anyone else were in the car with him at the time of the stop.
You do have a problem, though. If you initially told the police you didn't know anything about the gun, and then you get on the witness stand and testify that you DID know about the gun and that your BF didn't, the Commonwealth will argue that you are now lying to cover for your BF.
I'm not sure your testimony will help him all that much. It might hurt, in fact. It will give the Commonwealth a way to argue that your BF is in fact guilty. Otherwise, the Commonwealth would not be able to introduce your statement at trial
(where you said, "I don't know anything about that gun") unless you are called as a witness by the Commonwealth. Your BF and his attorney should evaluate whether or not your testimony will help or hurt him at trial. Once that decision has been made, go from there.
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I wish you the very best with this situation!