A ZLF client was charged with Carrying a Firearm Without a License, a 3rd-Degree Felony punishable by up to 7 years in prison. After a half-day non-jury trial, the client was found not guilty of the firearms offense. At the conclusion of trial, the client accepted a guilty plea to lesser drug charges for Probation Without Verdict, a diversionary resolution for first-time drug offenders which will lead to a record expungement upon the successful completion of probation.
On the incident date, the client borrowed a vehicle from a family member who was a former member of law enforcement. Unbeknownst to the client, the family member failed to provide any notice that there was a firearm located under the driver's seat of the vehicle. Upon being stopped for a speeding infraction, police did not observe the client reach in the direction of the gun, but noticed "unusually nervous" behavior. Upon searching for an insurance card in a purse, police observed items of drug paraphernalia. When the client exited the vehicle, police observed the firearm in plain view under the seat.
As the gun was not physically possessed by the client, the case turned on whether or not the Commonwealth could prove constructive possession - that the client had both the power to control and intent to control the weapon. At trial, the Commonwealth argued that when factoring in the proximity of the weapon to the client, coupled with the nervous behavior, that this demonstrated an intent to control the weapon.
The defense presented testimony from the family member, who testified that the gun was his, that he forgot he left it under the seat of his vehicle, and never told the client about it's presence. Furthermore, as there was no reaching motion towards the firearm, the nervous behavior was properly attributed to the possession of drug paraphernalia. Viewing the defense testimony as credible, the Court properly found the client not guilty of the firearms offense.
Upon the conclusion of trial on the gun charge, the prosecuting attorney graciously offered a plea to the lesser drug charges for Probation Without Verdict, a diversionary program for first-time drug offenders which may lead to a criminal record expungement. This resolution allowed the client to maintain employment, avoid a 6-month license suspension, and convicted felon status.