An individual who has been convicted of any felony criminal offense in Arizona loses their right to possess a firearm and ammunition as well. In fact, it is a felony criminal offense for an individual who has been convicted of a felony to do any of the following:
- Own a firearm
- Possess a firearm
- Use a firearm.
In addition, if a defendant is convicted of certain misdemeanors, in most cases crimes of domestic violence, they may be prohibited from possessing a firearm. As with a felony conviction, they would have to apply for and be granted the right to possess a firearm again.
This prohibition covers all types of firearms. There are no exceptions for possessing a firearm for hunting, sporting or self-defense purposes. It is not a defense to the crime that the defendant did not know that their criminal conviction made it illegal for them to possess a firearm.
In addition, defendants who have been convicted of a crime and are on probation or parole, under community supervision, or on work furlough may not possess a firearm or other prohibited weapons.
The firearm does not have to be in working order for possession to be a criminal offense. If it is a weapon designed to deliver deadly force, it qualifies as a firearm under the law. In addition, 2 or more defendants can possess a firearm at the same time. An individual does not have to be touching or holding a firearm to possess it. A local Arizona attorney would be able to explain the offense in more detail.
An individual who has been convicted of being a felon in possession of a firearm can be sentenced to imprisonment for up to 3.75 years in Arizona. In addition, convictions of firearm offenses can result in deportation or removal. A person would want to consult with an attorney about all the possible immigration consequences of conviction for being a felon in possession of a firearm.
To convict an individual of felon in possession, an Arizona district attorney must prove the following elements of the crime beyond a reasonable doubt:
- That the individual owned, cared for, controlled, or possessed the firearm
- That they knew that they had done this and
- That they have been convicted of felony criminal offense in the past.
To be considered a “felon,” as defined by the law, an individual has to have been convicted of a criminal offense that is classified as a felony. The individual could have been convicted in any of the 50 states in the U.S.
Of course, the federal government has its own system of criminal law, and an individual may have been convicted of a federal felony criminal offense, which also means that the individual may not possess firearms.
A “firearm” is any device designed for use as a weapon that uses an explosion or combustion to expel a projectile through a barrel. It does not need to be loaded or even in good working order.
A “firearm” includes the following:
- Long guns,
- Handguns, and
- Firearms that are concealed.
Possession does not mean that the person had the firearm on their person or in their hand. Possession can be actual and constructive. The term “actual possession” is defined as follows in Arizona:
- An individual has an item in their hand or on their person
- The item is within the reach of and under the control of an individual
- The item is in a container in the individual’s hand or on their person.
“Constructive possession” means knowingly having control over something, whether the control is direct, e.g., because an individual has it in their hand, or indirect, which is when the firearm is in a place controlled by an individual.
The law concerning how “possession” is defined can be quite technical. An individual should consult with an attorney if they have been charged with a firearm possession offense.
What Is the Minimum Sentence for Felon in Possession of a Firearm?
Being a felon in possession of a firearm is itself a class 4 felony criminal offense in Arizona. If convicted, a defendant can face the following punishment:
- The punishment is a maximum of 3.75 years in prison. If the defendant has a prior felony conviction on their record, they might be sentenced to a longer term of imprisonment.
Can a Felon Be Around a Person With a Gun?
An individual who has been convicted of a felony would probably want to stay well away from firearms. This would mean avoiding the presence of others who have firearms because “possession” may be defined as having control over an item. The law recognizes two types of possession:
- Actual possession and
- Constructive possession.
“Actual possession” means that the convicted felon has direct, physical control of a firearm. For example, they might have it on their person or in the glove compartment of their car.
The term “constructive possession” means having access to a firearm or the right to control it, even when the item is not within an individual’s actual physical possession or even within their physical reach. It is easy to imagine that a convicted felon in the presence of another who owns a gun that is physically accessible to both of them could be charged with the crime of possession.
Even if the convicted felon does not own the firearm, they might end up charged with possession and have to appear in court to argue that it was not theirs and they did not have constructive possession of it.
What Weapons Can a Felon Own To Protect Themselves?
As noted above, a “firearm” is any device intended to be used as a weapon and is powered by an explosion or combustion to expel a projectile through a barrel. To be convicted of the crime of being a felon in possession of a firearm does not require that the firearm is loaded or in good working order.
In Arizona law, a “firearm” may be any of the following:
- Long guns
- Handguns
- Pistols
- Rifles
- Concealed firearms.
An individual with a felony conviction would want to be sure to consult specific local laws also, because municipalities may impose additional restrictions or requirements on the possession of such devices as tasers and stun guns by convicted felons.
Otherwise, an individual who has been convicted of a felony might want to stay well away from firearms of all types. They might consider exercising extra caution in their activities to avoid any risk of harm and calling the police if their safety is threatened.
Can a Felon’s Gun Rights Be Restored?
An individual who has felony convictions may restore their right to possess a firearm in Arizona. Arizona law provides two possible ways in which an individual may restore their gun rights as follows:
- Apply for a “set aside”
- Apply for restoration of the right to possess firearms.
Defendants may also seek pardons as a last resort. An individual whose right to possess firearms has been restored may possess and purchase firearms.
An application for a set aside is filed in the court where the conviction occurred. The Arizona Judicial Branch has a form for this purpose.
A defendant may apply for a set aside as soon as their criminal case ends. The set aside process takes about 3 to 4 months. There is no filing fee. Set-aside restores gun rights for defendants convicted of non-serious felonies and misdemeanor domestic violence but not for those convicted of serious felonies.
Defendants convicted of either a dangerous offense, a felony against a child 14-years-old or younger, or any crime that included a finding of sexual motivation or that requires registration as a sex offender are not eligible to have their conviction set aside.
Meanwhile, defendants convicted in Arizona of serious offenses cannot get their firearms rights restored through a set aside. Instead, they must wait for 10 years after their case ends to apply to the court for the restoration of their right to possess a firearm. Some serious offenses are as follows:
- Murder in the first-degree
- Murder in the second-degree
- Manslaughter
- Aggravated assault that qualifies as a dangerous offense
- Sexual assault
- A dangerous crime whose victim is a child
- Arson of a structure that is occupied
- Armed robbery
- Burglary in the first-degree
- Kidnapping
- Sexual conduct with a child under 15
- Child sex trafficking.
An application to restore a defendant’s right to possess firearms is also filed with the court where the conviction occurred. The Arizona Judicial Branch has a form application, or defendants may draft their own motion. The process of restoration takes approximately 5 months.
Any defendant convicted of non-serious offenses in Arizona may apply for restoration of their right to possess a firearm when 2 years have passed after their case ends. Defendants convicted of a serious offense must wait 10 years after the case ends. Defendants convicted of dangerous offenses are not eligible to have their right to possess a firearm restored at any time.
Anyone convicted in Arizona of a dangerous offense is ineligible for a set-aside or for restoration of their right to possess firearms. “Dangerous offenses” are defined by Arizona law as follows:
- The use, discharge, or threatening display of a deadly weapon or dangerous implement
- The intentional or knowing infliction of serious physical injury on another individual.
Of course, while defendants convicted of a federal felony criminal offense may be able to get their firearm rights restored under Arizona law, they usually may not get their federal right to possess a firearm restored. So defendants with federal felony convictions lose their gun rights permanently.
Arizona expungement of criminal convictions may help a convicted felon in many ways, but Arizona expungement law is complicated and expungement is not available for all felony or misdemeanor convictions. So it is not a sure way to restore a defendant’s right to possess firearms.
Do I Need a Lawyer if I Am Charged With Felon in Possession of a Firearm?
If you have been charged with being a felon in possession of a firearm, there are defenses available to you. LegalMatch.com can connect you to an Arizona criminal defense lawyer who can review your case and identify any defenses that might be available.
Your lawyer would also know how to negotiate a plea agreement that may preserve your right to own a firearm. You will get the best result if you are represented by a qualified Arizona criminal defense lawyer.
