OWNERSHIP OR POSSESSION OF FIREARM BY PROHIBITED PERSON NRS 202.360
Our right to possess firearms is governed by the Second Amendment to the United States Constitution, which states:
A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
However, when it comes to the issue of possession of a firearm by a medical marijuana user in Nevada, the laws are extremely unclear.
Ownership or possession of firearm by certain prohibited persons is defined by NRS 202.360 and states:
“A person shall not own or have in his or her possession or under his or her custody or control any firearm if the person has been convicted of a felony in this or any other state, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, unless the person has received a pardon and the pardon does not restrict his or her right to bear arms, is a fugitive from justice; or is an unlawful user of, or addicted to, any controlled substance.”
“Controlled substance” is defined as a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V which defines each illegal substance. The term does not include distilled spirits, wine, malt beverages, or tobacco. Marijuana is designated as a Schedule I controlled substance.
The term “Firearm” includes any firearm that is loaded or unloaded and operable or inoperable.
Nevada law states that a person may not own or possess a firearm if he is an “unlawful user of, or addicted to, any controlled substance.” This means that if a person is arrested while in possession of both drugs and a gun, he may be charged under this statute. This crime is a category B felony, with a potential prison sentence of 1 to 6 years and a fine of $5,000.
In particular, NRS 202.360 makes it a crime for the following types of people to own or possess firearms: ex felons, fugitives from justice, illegal drug users, mentally ill persons, and illegal immigrants.
This is where the law becomes confusing for medical marijuana participants. It is lawful for these individuals to be in possession of a designated amount of medical marijuana, however, there are various factors involved when firearms come into play.
Nevada state law is very vague on the issue of medical marijuana and firearms. There does not appear to be anything in Nevada law that would specifically prohibit a marijuana patient from owning a firearm. Unfortunately, many law enforcement officers still confiscate firearms from otherwise law abiding patients who hold a legal medical marijuana card.
When confiscating firearms from medical marijuana patients, law enforcement has relied on NRS 202.360, which prohibits the ownership or possession of firearms by prohibited persons including: convicted felons, fugitives, or persons who are unlawful users of or addicted to any controlled substance.
Some law enforcement officers are of the opinion that simply because a person is a marijuana patient, they are “addicted to a controlled substance” pursuant to NRS. 202.360(1)(c). While some patients may develop a dependency, the assumption of addiction is certainly questionable.
Additionally, pursuant to NRS 202.3657, Nevada residents may apply to the county sheriff for a Concealed Weapons Permit, or CCW. Again, Nevada law is not specific with regard to medical marijuana patients. Nevada law provides that once a person has demonstrated they are qualified under the law, the sheriff must issue that person a CCW. However, the sheriff must deny an application if the applicant has, within the preceding five years, “habitually used intoxicating liquor or a controlled substance to the extent that his or her normal faculties are impaired.”
The CCW application originally contained no reference to medical marijuana users. However, in October 2015, the Las Vegas Metropolitan Police Department’s CCW application now indicates that marijuana patients do not qualify for a CCW, due to the federal prohibition on marijuana. Therefore, the issue remains unresolved at this time.
Federal law is very clear on this issue and states that marijuana users may not own or possess firearms or ammunition. However, under Nevada state law the answer is not so clear and there are very few laws addressing users of controlled substances and firearms, and none directly dealing with lawful medical marijuana patients.
Given the possibility that recreational marijuana use may be legalized in Nevada in 2016, issues relating to marijuana and firearms are only going to increase.
EX FELON IN POSSESSION OF FIREARM,
Under NRS 202.360(1)(a), a person cannot possess a firearm if he has ever been convicted of any felony offense in any state court or in federal court. For the purposes of this statute, a felony is any crime where a term of imprisonment of more than one year is a possible sentence, regardless of whether the defendant actually served any prison time as the result of the conviction. A “conviction” can result from either a guilty plea or a finding of guilt after a trial.
For example, an individual who may possess a legal medical marijuana card yet has prior convictions for a felony, including any drug related convictions, would be considered an ex-felon, and cannot lawfully possess a firearm.
There is no time limit on the use of a prior felony conviction for the purposes of Nevada’s ex felon in possession statute. Under this statute, once you are a felon, you are always a felon. The only exception is if you were granted a full pardon with restoration of your gun rights, which is extremely rare.
Ex-felon in possession of a firearm is a category B felony. The punishment range is 1 to 6 years in Nevada prison, plus a possible fine of $5,000. Most often probation is denied in this offenses as a conviction for this crime will be, at the very least, the offender’s second felony.
Additionally, a charge of ex-felon in possession of firearm may be picked up federally and result in separate charges at that level.
OTHER “PROHIBITED PERSONS” IN POSSESSION OF FIREARM – MEDICAL MARIJUANA
A person who holds a registry identification card for medical marijuana is not exempt from state prosecution for, nor may the person establish an affirmative defense to charges arising from being under the influence with possessing a firearm.
A person is also not exempt from prosecution for possession pf marijuana or paraphernalia of the marijuana or paraphernalia is discovered because the person engaged or assisted in the medical use of marijuana in any public place or in any place open to the public or exposed to public view; or any local detention facility, county jail, state prison, reformatory or other correctional facility, including, without limitation, any facility for the detention of juvenile offenders.
In addition to any other penalty provided by law, if the Division determines that a person has willfully violated a provision of the medical marijuana statutes, the Division may, at its own discretion, prohibit the person from obtaining or using a registry identification card for a period of up to 6 months.
DEFENSES TO OWNERSHIP OR POSSESSION
OF FIREARM BY PROHIBITED PERSON
Generally, ex-felon in possession charges are defended on grounds that either the offender was not in possession of the firearm, or the search was illegal and the evidence must be suppressed. An additional defense may be available if the accused is arguably not a prohibited person (e.g. the person is not actually a drug addict but perhaps a legal medical marijuana card holder.
Multiple factors that result in the criminal charges being reduced or even dismissed include, but are not limited to:
• Alleged offender did not legally own firearm or have it in his or her possession or under his or her custody or control
• Alleged offender was not in knowing possession of firearm
• Illegal search and seizure
• Lack of evidence alleged offender is user of or addicted to controlled substance
• Lack of evidence alleged offender possessed firearm
The standard bail amount for an offense relating to ownership and/or possession of a firearm is $20,000.
If you have been charged with this, or any other marijuana related offense, we encourage you to call us now at (702) 405-0001 to arrange a consultation.