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Weapon Possession

The Second Amendment to the United States Constitution establishes the right to possess arms. However, the right to bear arms is not absolute. Like all states, Colorado has the right to establish laws that place some limits and controls over whom may possess weapons, what kind of weapons may be possessed, and how the weapons may be used. For example, those with prior felony convictions, or those with convictions for domestic violence offenses, are prohibited from possessing, using, or carrying firearms.

Weapons charges range from minor misdemeanor offenses up through serious felonies that have prison sentences that must be served consecutively to any other sentence that the defendant is already serving. As with all crimes, the help of an experienced criminal lawyer will help to minimize the potentially harsh outcome that you may be facing. Weapons charges are generally treated harshly by Denver area judges, as they are considered to be especially dangerous to public safety, especially in an urban setting like Denver and the surrounding counties.

The following are some of the gun laws in Colorado:

Possession of a Dangerous or Illegal Weapon
Weapons that are “illegal” in Colorado include blackjacks, brass knuckles, switchblades, gravity knives, or gas guns. Dangerous weapons include firearm suppressors, machine guns, short or sawed-off shotguns, short rifles or ballistic knives.

Possession of dangerous weapons is a class 5 felony, unless the defendant has a prior offense for this charge, in which case it becomes a class 4 felony. Possession of an illegal weapon, by comparison, is only a class 1 misdemeanor.

Members of law enforcement, or the armed forces, are exempt from these prohibitions provided that they have a valid license or permit to be in possession of such weapons.

Defaced Firearms
It is a crime to possess a firearm that has a missing serial number, either because the number has been removed or altered. There is an exception if the serial number has been removed as a result of normal wear and tear. Notice how there is no requirement that the possessor of the weapon was the one to remove or deface the serial number. Mere possession of the weapon amounts to guilt. Possession of such a defaced firearm is a class 1 misdemeanor in Colorado, and carries a possible 18 months in the county jail. A second offense within five years will be charged as a class 5 felony.

When there is a conviction for Possession of Defaced Firearm, the law enforcement agency that collected the weapon, or the Colorado Bureau of Investigation, is required by law to destroy the weapon or otherwise make it permanently inoperable.

Unlawfully Carrying a Concealed Weapon
It is unlawful to carry a concealed firearm without a valid permit issued by the county in which you reside. However, this is not a crime when you are on your own property. It is permissible to carry a firearm in a private vehicle so long as it is for the “lawful protection” of people or property during travel. It is also acceptable, of course, if the concealed weapon is being possessed by a police officer so long as the officer is acting in conformance with the policy of their employing law enforcement agency.

“Concealed” means that the weapon cannot be seen with “ordinary observation.” Unlawfully Carrying a Concealed Weapon is a class 2 misdemeanor in Colorado and carries a possible one year jail sentence. A second offense within a five-year time frame is a class 5 felony.

Possession of Firearms on School Grounds
It is a class 6 felony to possess a dangerous weapon on school grounds. This includes elementary, middle, junior high schools, high schools, colleges or universities. Exceptions are made for those who are authorized to be in possession for education or instructional purposes. For example, someone teaching a firearms class is allowed to be in possession of firearms for that reason. Likewise, someone participating in an athletic event involving firearms, such as the biathlon, is authorized to possess such a weapon.

Unlawful Purchase of Firearms
It is a class 4 felony in Colorado for someone to purchase a firearm for, or transfer a firearm to, someone that they know “or reasonably should know” is not legally allowed to have a gun under federal or Colorado state law. This is a serious offense, carrying a possible six-year sentence to the Colorado Department of Corrections.

Any weapons charge in Colorado should be taken very seriously. You should seek advice from an expert criminal defense attorney as to whether the charges that you are facing carry mandatory consecutive prison sentences. Our office will be able to answer these questions for you. Please give us a call if you are facing criminal charges of any kind.

Travelling with Weapons in Colorado
No city or county in Colorado is allowed to pass a law making it illegal to pass through their jurisdiction with a firearm. People are allowed to carry a firearm in their vehicle, either for hunting purposes, or for personal or property protection. Colorado lawmakers have recognized that if some jurisdictions, and not others, passed laws prohibiting transportation of guns, the person travelling would not be aware if or when they were breaking the law. For this reason, no jurisdiction can prevent the transportation of guns.

Possession of Weapon by Previous Offender
People who have been convicted of a felony crime are not permitted to possess firearms under Colorado law. If a person possesses, carries, or uses a firearm after having been convicted of a felony in Colorado, or any other state, they will be charged with Possession of Weapon by Previous Offender.

Possession of a Weapon by a Previous Offender is always a felony. The class of felony is dependent upon other facts and circumstances. The starting point, however, is that this crime is a class 6 felony, carrying a possible 18 month sentence to the Colorado Department of Corrections. Any sentence for a conviction for this crime must be served consecutively to any other sentence the defendant is already serving.

Possession by a previous offender will be elevated to a class 5 felony if:

  1. The previous felony conviction that resulted in the defendant being labeled a “previous offender” was for Burglary, Arson, or any other felony crime that involved the use of force or the use of a deadly weapon, and
  2. The new possession of weapon charge occurred within 10 years of the date of conviction for the initial felony, or within 10 years of the defendant’s release from prison, or 10 years from the end of probation supervision.

A conviction for this offense will also be elevated to a class 5 felony if the weapon being possessed is classified under Colorado law as a “dangerous” weapon. Examples of weapons that have been defined as dangerous include firearm silencers, machine guns, short shotguns, short rifles, and ballistic knives.

In cases where Possession of Weapon by a Previous Offender is elevated to a class 5 felony, as described above, it will be elevated one step further to being class 4 felony for second or subsequent offenses. Again, all sentences for this crime must be served consecutively to any other sentence the defendant is already serving.

The mental state that must be proven beyond a reasonable doubt before the prosecution can successfully convict someone charged with this crime is “knowing.” This means that if the defendant was in possession of the weapon, but was unaware of it, the defendant should be found not guilty.

People who have pled guilty and are placed on a deferred judgment and sentence for a felony crime are prohibited from possessing weapons just as though they had been convicted outright of a felony.

Prohibited Use of Weapons
Colorado law prohibits certain actions with weapons. Prohibited Use of Weapons is a broad statute that covers different scenarios. A violation of this criminal statute is a class 2 misdemeanor, carrying a possible jail sentence of up to one year, and up to a $1,000 fine. A second offense within five years is considered to be a class 5 felony in Colorado.

A person commits prohibited use by discharging a firearm, or shooting a bow and arrow, in any way that is viewed as reckless or negligent. As you can see, this is a broad definition, which leaves a potential jury a lot of discretion when deciding on the issue of guilt or innocence. Generally speaking, the closer the person that fires the weapon is to other people or buildings, the more likely a jury would find the action to be reckless or negligent.

The second way of violating this statute is to “knowingly” aim a firearm at another person. As you can see, the defendant has to know, or be aware, that they are aiming the weapon at someone. If they inadvertently point the gun toward someone and are not aware of it, they have not violated this statute.

The third type of violation is to set a gun trap. This refers to setting a loaded gun in such a way that a person could trip the gun to go off. This is illegal, unless the gun is being attended by a competent person that is immediately present.

The fourth type of violation is to be in possession of a firearm while under the influence of alcohol or drugs. Among criminal defense attorneys, this is often referred to as a “drunk with a gun” charge. Kevin Churchill has seen these types of charges countless times in DUI cases. It has frequently happened that the DUI defendant had a gun in the glove box or the center console of their vehicle. The statute does not require that the gun be loaded for there to be a finding of guilt. What is meant by “possession” is a question for the jury to decide.

Last, it is considered Prohibited Use of a Weapon in Colorado for a person to knowingly aim, swing or throw a nunchaku or throwing star at someone. Likewise, it is a violation to possess either of these items in public, unless the possession is for the purpose of an authorized public demonstration or exhibition.

Having a criminal record for any weapons violation is something to avoid. Your defense lawyer will look for ways out of such a conviction, either through challenging the evidence, or through plea negotiations. Please call our office if you are facing this, or any other weapons-related criminal charges.

Illegal Discharge of a Firearm
A person commits Illegal Discharge of a Firearm if they shoot a gun at any dwelling or building, whether there are people inside or not. The prosecutor would have to prove beyond a reasonable doubt that the shooter knew what they were doing when the shot was fired, or that the shooter was acting in a reckless manner. Colorado law specifically states that it is not necessary that any bullet actually strike, or enter, the building that was fired at.

The second form of this offense occurs when a person fires a gun into any motor vehicle that is occupied. Here again, it does not matter if the bullet enters the motor vehicle.

As you might expect, there is an exception for police and other law enforcement that are acting in the performance of their duties. Illegal Discharge of a Firearm is a class 5 felony and carries a possible prison term of three years. The maximum sentence can be increased to six years if the sentencing judge determines that there are extraordinary aggravating circumstances to the case.