FIREARMS

How serious are firearms charges?

In 2022, Ohio’s “Constitutional Carry” law went into effect. The new law permits eligible Ohioans to carry a concealed handgun without a license. Generally, to be eligible to carry in this way, you must be:

• At least 21 years old, and
• A legal resident, and
• Not otherwise prohibited from possessing a firearm under state or federal law.

Although many states, including Ohio, have loosened laws on firearms in recent years, there still remain specific, stringent state and federal laws on the books regulating their possession and handling. Indeed, under “Constitutional Carry,” you still must abide laws that have historically regulated licensed carriers (e.g., not carrying in a bar that serves beer or liquor). Failure to do so can lead to charges ranging from a minor misdemeanor to a 1st degree felony.

Furthermore, besides the simple possession and handling of a bare firearm, having or using a firearm while committing certain violations (e.g., robbery), can mean mandatory prison time under Ohio’s “gun specs” laws.

Thus, improper possession and handling of firearms in Ohio can lead to serious charges and penalties, in addition to prohibiting you from owning, possessing, or otherwise using firearms.

Because of the changing and complex landscape of firearms regulation, it is possible you will face felony firearms charges without having realized your actions were a crime. It is therefore important to understand the various types of firearms charges under Ohio law.

What types of firearms charges exist?

Ohio has a complex variety of laws pertaining to various sorts of weapons. The following information relates specifically to firearms, even though some of the laws named below speak to other sorts of weapons as well. These are the most common charges I’ve seen in my career.

Carrying a Concealed Weapon (CCW)

In Ohio, unless otherwise eligible to do so, you cannot legally carry or have a concealed handgun. Even if eligible, you must still ordinarily:

• Disclose you are carrying a firearm to an officer who asks pursuant to a law enforcement purpose. In such a situation, you should also, for example:
  • Not reach for the handgun
  • Keep your hands in plain sight when the officer approaches.
• Not carry in sensitive places (e.g., police station; school zone, place of worship, courthouse, etc.)

Depending on the circumstances, a conviction for CCW can range from a minor misdemeanor to a third degree felony.

Defenses to a CCW charge may be, for example:

• You did not in fact “carry or have” (possess) the handgun.
• The gun was not on your person or ready at hand.
• You did not know the handgun was there.
• The gun was not operable and could not have been rendered operable at the time.
• You were carrying the gun at the time for purposes of defense because you had reason to fear a criminal attack.
• You were in your own home.
• There was an illegal search that resulted in discovery of the gun.

Having Weapons Under Disability (HWUD)

HWUD is a 3rd degree felony. You can be charged for HWUD when you knowingly “acquire, have, carry, or use” (possess) a firearm while you are under a disability. The “disability” referred to is a legal one–meaning the law prohibits you in particular from possessing a firearm because of something in your past. Thus, you may be charged for HWUD for having a firearm when, for example, you already:

• Are a fugitive from justice
• Have been convicted of (or indicted on) any offense of violence.
  • Note: If you committed a “felony” offense of violence as a juvenile, that would also be considered a disability.
• Have been convicted of (or indicted on) any felony offense involving drug possession or trafficking
• Are drug addicted or suffer from alcoholism.
• Suffer from mental health problems that have been the subject of a court order.

Defenses to a HWUD charge may be, for example:

• You did not in fact “acquire, have, carry, or use” (possess) the firearm
• You did not know the firearm was there.
• You were not under a legal disability. For example, you had been relieved of the disability by a court (e.g., not a fugitive at the time) or had been improperly classified as being under a disability.
• The gun was not operable and could not have been rendered operable at the time.
• There was an illegal search that resulted in discovery of the gun.

Improper Handling of a Firearm in a M/V

You can be charged with “improper handling” in a motor vehicle (“MV”) when you knowingly:

• Discharge a firearm in or on a motor vehicle, even if you are licensed to carry or are otherwise eligible to carry under “Constitutional Carry”
  • 4th degree felony
• Transport or have a loaded firearm in a MV and the firearm is accessible to anyone in the MV, unless you are eligible to carry under “Constitutional Carry”
  • 4th degree felony
• Transport or have a firearm in a MV, unless you are authorized to possess it, it is unloaded, and it is carried in a certain way (e.g., inside a closed case)
  • 4th degree misdemeanor (M4)
• Transport or have a loaded firearm in a MV while you are DUI/OVI, even if you are licensed to carry or are otherwise legally permitted to carry a loaded firearm.
  • 5th degree felony (if firearm not on your person)
  • 4th degree felony, if the firearm is on your person

Defenses to “improper handling” may be, for example:

• You did not know the firearm was in the MV
• The firearm was not actually loaded because, for example, there were no bullets to the gun anywhere inside the gun or the vehicle.
• The gun was not actually operable and could not have been rendered operable at the time.
• Any discharge of the firearm was a mistake
• There was an illegal search that resulted in discovery of the gun.
• The vehicle was not actually a “motor vehicle” (e.g., it was an electric/motorized bicycle, a golf cart, a utility vehicle, etc.)

Improperly Discharging a Firearm at or Into a Habitation or School-Related Area/Event

This is a 2nd degree felony. You can be charged with “improperly discharching a firearm” into a habitation or around a school, unless you are privileged to do so (e.g., police officer within the scope of duty to stop an active shooter). Thus, it is ordinarily illegal to discharge a firearm:

• At or into an occupied habitation,
• At, in, or into a school safety zone, OR
• Within 1000 feet of a school building or its boundaries with the intent to cause:
  • Physical harm to someone in the school or at a school function,
  • Panic or fear of physical harm to someone in the school or at a school function, OR
  • Evacuation of school buildings or events.

Defenses may be, for example:

• Any discharge of the firearm was a mistake
• Mistaken identity
• Self-defense or defense of others. Up to a point, you do have a legal right to defend yourself or others with physical force.
  • In 2019, Ohio shifted the burden of proof in favor of defendants. Although it is still up to the defense to raise the issue, once that is done, the burden shifts to the State to prove that you did not act lawfully in defending yourself.
  • Note: Because we’re talking here about a very sensitive venue–schools and their surroundings–discharging a firearm at or into a school would be intently scrutinized. Short of acting to stop an active shooter, it may be exceedingly difficult to claim justification.
• There was an illegal search that resulted in discovery of the gun.

Discharge of a Firearm on or Near Prohibited Premises

This violation is similar to Improperly Discharging a Firearm at or Into a Habitation or School-Related Area/Event. Here, the law ordinarily prohibits discharging a firearm:

• On or over a cemetery (M4), or
• On specific grounds attached to a school, church, or inhabited dwelling (M4), or
• On or over a public roadway/highway (1st degree misdemeanor, M1)

As noted directly above, a violation is ordinarily a misdemeanor. However, in some cases, a violation is a felony. A felony would apply to violations where you discharged a firearm on or over a public roadway and thereby:

• Created a substantial risk of physical harm to a person or actually caused serious physical harm to property (3rd degree felony)
• Caused any physical harm to a person (2nd degree felony)
• Caused serious physical harm to a person (1st degree felony)

Defenses are similar to those for Improperly Discharging a Firearm at or Into a Habitation or School-Related Area/Event

Could there be mandatory prison time for offenses involving a firearm?

YES. Violations involving firearms sometimes carry “gun specs,” which set out mandatory prison terms. In some cases, uses a firearm to commit robbery can lead to mandatory prison. Similarly, mandatory prison time can accompany a violation of HWUD. Carrying a Concealed Weapon, however, does not carry gun specs–showing again the complexity of firearms laws in Ohio and the need for an attorney to parse the complicated statutory language.

How can Attorney Tovanche help me?

Avoiding a conviction of any sort would be the over-arching approach. There are any number of ways to look at the large variety of charges listed above. Because the law on firearms is complex and requires the State to prove exactly what the statute prohibits, there are many ways to undermine the State’s case. See “Defenses” under each violation listed above.

What if a conviction seems likely?

First, remember that a case that seems like a “slam dunk” for the prosecution may not actually go very far. We’ll look at the whole picture to see whether dismissal is possible, from the very beginning. If not, and a conviction seems likely, I will tell you so. In that case, I would work with you to lessen the impact on your life by negotiating a plea deal and arguing for the best sentence under the circumstances.

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