Misconduct Involving Weapons in Arizona: ARS 13-3102

What is Misconduct Involving Weapons?

The crime of “Misconduct Involving Weapons,” defined in A.R.S. § 13-3102, is a serious crime in Arizona and is usually charged as a felony offense for the illegal possession of a deadly weapon. There are 17 different types of misconduct involving weapon (or MIW) charges. However, the charge seen most often is for possession of a deadly weapon by a “prohibited possessor.” This crime is a class 4 felony and can lead to prison time if convicted.

A.R.S. § 13-3102 Defined

Arizona’s misconduct involving weapons statute covers a broad range of circumstances where it is illegal for a person to possess a deadly weapon. It goes well beyond just making it a crime for a person to be a “prohibited possessor,” even though that is one of the most common types of MIW charges that we see.

The following list describes the different types of MIW charges based on the particular section of ARS 13-3102, where they are found and provides the level of crime for each violation.

ARS 13-3102 states that a person commits misconduct involving weapons by knowingly:

• ARS 13-3102(A)(1)(a): Carrying a deadly weapon to further committing a serious offense. Class 6 felony.
• (A)(1)(b): Lying to a police officer about having a deadly weapon. Class 1 misdemeanor.
• (A)(2): Carrying a deadly weapon if you are under 21. Class 3 misdemeanor.
• (A)(3): Manufacturing, possessing, or transporting a prohibited weapon. Class 4 felony.
• (A)(4): Possessing a deadly weapon if you are a prohibited possessor. Class 4 felony.
• (A)(5): Giving a deadly weapon to a prohibited possessor. Class 6 felony.
• (A)(6): Defacing a deadly weapon. Class 6 felony.
• (A)(7): Possessing a defaced weapon. Class 6 felony.
• (A)(8): Using a deadly weapon in a drug offense. Class 4 felony.
• (A)(9): Firing a weapon at an occupied structure in furtherance of gang activity. Class 3 felony.
• (A)(10): Refusing to remove your weapon in a public establishment when asked to do so. Class 1 misdemeanor.
• (A)(11): Possessing a deadly weapon at a polling place. Class 1 misdemeanor.
• (A)(12): Possessing a deadly weapon on school grounds. Class 1 misdemeanor or class 6 felony.
• (A)(13): Possessing a deadly weapon at a nuclear or hydroelectric plant. Class 4 felony.
• (A)(14): Giving a deadly weapon to another person so they can commit a felony. Class 3 felony.
• (A)(15): Possessing a deadly weapon to commit an act of terrorism. Class 2 felony.
• (A)(16): Trafficking in a deadly weapon to assist a criminal street gang. Class 3 felony.

What is a “Deadly Weapon” Under A.R.S. § 13-3102?

The definition of a “deadly weapon” is essential to understand when analyzing the misconduct involving weapon statute because every section of the law requires the state to prove the weapon in question is “deadly.” ARS 13-105 defines a “deadly weapon” as “anything designed for lethal use, including a firearm.”

A “deadly weapon” contrasts with the definition of a “dangerous instrument,” which you also often see discussed in criminal statutes. A dangerous instrument is anything “under the circumstances in which it is used” is capable of causing death or serious physical injury. This covers a broader range of objects. It can include things like a brick, for example, which is capable of causing serious injury or death if used as a weapon, but that is not what a brick is designed for. Whereas, a gun is designed to be a weapon. Only “weapons” are covered under the MIW law.

One weapon that is explicitly covered is a firearm. A “firearm” is defined by law as any handgun, pistol, revolver, rifle, shotgun or any other such object which fires a projectile (like a bullet or buckshot, etc.) through the action of expanding gases (this is the scientific concept which allows guns to shoot bullets when the trigger is pulled and it is opposed to something like a crossbow where the arrow flies through the air because of the release of tension from a string).

Who is a “Prohibited Possessor”?

“Possess” is defined by Arizona law in this way: “Knowingly to have physical possession or otherwise to exercise dominion or control over the property.” This should not be confused with ownership. Sometimes people may think that they cannot be charged with misconduct involving weapons if they did not own the gun that police found. Ownership is not required to prove a violation of the law. Only possession is required.

What are “Prohibited Weapons”?

ARS 13-3102(A)(3) makes it illegal for anybody to possess a “prohibited weapon.” In other words, certain types of weapons are simply illegal to possess in Arizona, even if you are not a convicted felon.

Prohibited weapons in Arizona include:

• A bomb, grenade, or rocket.
• A silencer.
• A fully automatic weapon.
• A short-barrel or “sawed-off” rifle or shotgun.
• Nunchacku (aka nunchucks).
• A Molotov cocktail.
• Dry ice.
• An improvised explosive device (IED).

The following weapons are not prohibited weapons:

• Fireworks.
• Propellant.
• Any device manufactured primarily for illumination.

What Does it Mean to “Deface” a Deadly Weapon?

ARS 13-3101 says that “deface” means to “remove, alter, or destroy the manufacturer’s serial number.” This is illegal because the serial number is a unique number that police use to identify the owner of a firearm. A defaced gun can more readily be used during a crime because it is harder to trace. Therefore, Arizona makes the very act of defacing a gun illegal.

Penalties for Misconduct Involving Weapons

The penalties for a misconduct involving weapons charge differ depending on a number of factors. The first factor is the subjection of ARS 13-3102 that the case is charged under. There are 17 different subsections in the MIW statute, and all of them describe different types of MIW charges and are classified as different levels of crimes. The most serious MIW charge is listed as a class 3 felony. The least serious MIW charge is a class 3 misdemeanor.

Each class of felony and misdemeanor carries a range of potential penalties. Here is the range of potential penalties for a first-time offense:

• Class 3 felony: 2 to 8.75 years in prison
• Class 4 felony: 1 to 3.75
• Class 5 felony: .5 to 2.5
• Class 6 felony: .33 to 2

If this is a second historic prior felony, the potential prison ranges are:

• Class 3 felony: 3.25 to 16.25 years
• Class 4 felony: 2.25 to 7.5
• Class 5 felony: 1 to 3.75
• Class 6 felony: .75 to 2.75

For third-time felony offenders, the ranges increase further:

• Class 3 felony: 7.5 to 25 years
• Class 4 felony: 6 to 15
• Class 5 felony: 2.25 to 5.75
• Class 6 felony: 1 to 3.75

If the misconduct involving weapons charge is listed as a misdemeanor, here are the potential jail terms:

• Class 1 misdemeanor: Up to 6 months in jail
• Class 2 misdemeanor: Up to 4 months in jail
• Class 3 misdemeanor: Up to 30 days in jail.

For misdemeanor offenders and for first-time felony offenders, probation may also be an option. All the potential punishments can also come with fines and court surcharges, as well as the requirement to attend court-ordered treatment classes.

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Defenses to Misconduct Involving Weapons

• Lack of Knowledge: A misconduct involving weapon charge requires that you “knowingly possess” a weapon. If the state cannot prove beyond a reasonable doubt that you had knowledge of a weapon’s existence, then you cannot be found guilty of a MIW charge.

Example: If a prohibited possessor is given a package to hold, and he does not know what is inside the package, then he does not have the required criminal intent to commit misconduct involving weapons. The same is true if he is driving somebody else’s car, and there is a gun in the glove box or console that he does not know about. He might “possess” the firearm because it is easily accessible to him, but he does not do so “knowingly.”

• Statutory defenses: There are numerous exceptions to a misconduct involving weapon charge that are written into the statute. For example, some portions of the statute do not apply to members of the military or to police officers. If you are charged with MIW for possessing a deadly weapon under the age of 21, it is a defense that the gun is carried in a holster or in luggage. The criminalization of the possession of “prohibited weapons” also does not apply to manufacturers or dealers in those weapons. A knowledgeable gun crime attorney can tell whether one of these many exceptions might apply to your charges.
• No “Possession”: As we discussed above, for this crime, the state needs to prove that you had “physical possession” or otherwise had “dominion or control” over the firearm. This means the prosecutor will try to prove that you either actually had the firearm on your person, or that you had control over the firearm. But there are many situations where, even though a gun might be near you, you don’t actually possess it. For example, what if you live with roommates and the gun was found in your roommates’ bedroom, which you don’t have access to? If the state cannot prove that you actually possessed or exercised control over the firearm, then it cannot prove its case.

Example: You live in an apartment that you share with a roommate. You and your roommate each have separate bedrooms. Your roommate owns a gun, and you know of the gun’s existence. The gun is located in a gun safe that your roommate owns, and you don’t have the key or know the combination. In this case, you don’t “possess” the gun because you don’t exercise “dominion or control” over it.

• Lack of evidence: The state always the burden of proving any crime “beyond a reasonable doubt.” In gun crime cases, evidentiary challenges can be brought to help prove your innocence. This can include fingerprint analysis or DNA analysis, gunshot residue analysis, and chemical testing of the weapon. These types of tests can show that there is a lack of connection between you and the gun, or that that gun was connected to somebody else.
• Constitutional violations: Even if the state has enough evidence to prove its case, criminal charges still might be tossed out entirely, or evidence might be suppressed if the police violated your fundamental constitutional rights, such as your right to remain silent, your Miranda rights, or your right to counsel.

How Salwin Law Group Can Help You

If you have been charged with misconduct involving weapons under ARS 13-3102, having an experienced Phoenix defense lawyer by your side can make the difference. We will carefully review your case and investigate the evidence against you so that we can create a defense game plan to give you the best chance of a successful outcome. You will be treated like you are our only client. The charges you’re facing will be carefully explained to you, we will answer all your questions, and you will be continually updated on developments in your case.

Facing criminal charges can be frightening, but the situation is never hopeless. We offer free consultations and can discuss your care with you today. Don’t face these charges alone. Together we can help you get your life back.

Call Salwin Law Group PLLC today at (480) 702-1789, or contact us online to make your appointment.