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View Full Version : Guns and Narcotics, legal question


sonico
12-21-2009, 4:56 PM
Just a few purely hypothetical situations I was hoping to get someone familiar with California law to chime in on:

Would possession of legal firearms (all secured) in the presence of a small amount(obviously not intent to distribute amounts) of illegal narcotics present any kind of enhancement to narcotic possession charges?

If any charge enhancements would apply, what if the narcotics did not belong to the owner, and this could be verified by a drug test?

Would possession of legal firearms (which are all secured) in the presence of drug related paraphernalia with no narcotics present present any kind of enhancement to narcotic possession charges?

Thanks in advance for input.

B Strong
12-21-2009, 5:14 PM
Just a few purely hypothetical situations I was hoping to get someone familiar with California law to chime in on:

Would possession of legal firearms (all secured) in the presence of a small amount(obviously not intent to distribute amounts) of illegal narcotics present any kind of enhancement to narcotic possession charges?

If any charge enhancements would apply, what if the narcotics did not belong to the owner, and this could be verified by a drug test?

Would possession of legal firearms (which are all secured) in the presence of drug related paraphernalia with no narcotics present present any kind of enhancement to narcotic possession charges?

Thanks in advance for input.

It really depends on the jurisdiction and the prosecuter.

In some areas, I'm sure that every single charge they can think of will get thrown at everybody in the house should the cops come a callin'.

In another thread I posted about a marijuana growing bust in SC county that was over -one- pot plant in the backyard of the house.

The owner also had a great collection of FAL's, some other shooters, and 37K in cash.

He had the book thrown at him out of the gate, ended up with a small sentence, big fine, lost all the guns.

My advice? lose the dope and the dope users pronto.

Shotgun Man
12-21-2009, 5:19 PM
See PC 12022. It addresses being armed while in felony possession of narcotics. Armed means "the gun was available for offensive or defensive use in committing the underlying offense."

So for most narcotics, the answer is a resounding yes, there is increased criminal liablity.

I don't think there is an enhancement that could attach to simple possession of pot, but transporting narcotics means essentially moving it from point A to B which could apply even within one's home, elevating simple possession of mj to a felony.

If the narcotics don't belong to you and you're not involved with them, you're probably not guilty of the underlying possession charge, in theory at least, not to say you wouldn't be convicted anyway.

The Director
12-21-2009, 5:38 PM
I know a guy who lived with a roomate. Cops were called to the house because of a loud party. Barged in, searched the place, found some coke in one of the guys rooms as well as a 1911 - in plain view.

I don't know how much coke they found (it wasn't much - for personal use that much I know), but the dude did time and can never own a firearm again.

Nose Nuggets
12-21-2009, 6:06 PM
^per Shotgun Man
Only for felony possession? i think a lot of the minor possession charges are misdemeanors. although im not sure how big of a deal that is in the gran scheme of things.

Shotgun Man
12-21-2009, 6:11 PM
^per Shotgun Man
Only for felony possession? i think a lot of the minor possession charges are misdemeanors. although im not sure how big of a deal that is in the gran scheme of things.

With the exception of marijuana, I believe all narcotics possession charges are felonies or wobblers (chargeable as a felony or misdemeanor at the discretion of the gov).

The main drugs-- cocaine, base, meth, heroin, pcp, ecstacy, etc. are chargeable as felonies.

GrizzlyGuy
12-21-2009, 7:13 PM
^per Shotgun Man
Only for felony possession? i think a lot of the minor possession charges are misdemeanors. although im not sure how big of a deal that is in the gran scheme of things.

Here is the list of narcotics-related statutes in 12022 PC (http://law.onecle.com/california/penal/12022.html):

Notwithstanding the enhancement set forth in subdivision (a),
any person who is personally armed with a firearm in the commission
of a violation or attempted violation of Section 11351, 11351.5,
11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6
of the Health and Safety Code, shall be punished by an additional and
consecutive term of imprisonment in the state prison for three,
four, or five years.

Here is a link (http://law.onecle.com/california/health/11351.html) to one of them (11351 over in the Health and Safety Code). You can click on that, then replace "11351" in the URL with the other numbers to view them all and see which one(s) might apply.

Geo
12-21-2009, 7:16 PM
People generally don't ask these kinds of so-called hypothetic questions unless they are living a fools life.

Respectfully, live like a fool, end up in jail like a fool.

sonico
12-22-2009, 8:53 AM
These situations may not have been hypothetical some time ago. They are now (thankfully).

When financial circumstances dictate you need to live with roommates, you may not know exactly what's going on behind closed doors.

I appreciate the input as always gents. B Strong, Shotgun, Grizzly, exactly what I was looking for, thanks!

Nose Nuggets
12-22-2009, 9:37 AM
People generally don't ask these kinds of so-called hypothetic questions unless they are living a fools life.

Respectfully, live like a fool, end up in jail like a fool.

That's a pretty broad, sweeping generalization. How exactly would you presume to know the circumstances of the OP? Maybe he just prefers living like a free man instead of a subject?

nn3453
12-22-2009, 9:50 AM
When financial circumstances dictate you need to live with roommates, you may not know exactly what's going on behind closed doors.


This is true, especially for college students. These days, almost every college kid in California is smoking pot either regularly or casually. I have talked to enough young shooters who don't do drugs to know that bad/unwise company is a problem. If you are a college student who likes shooting sports, it is best to stay away from narcotics and leave the guns at a relatives or a 2A friendly residence. Don't go down for someone else's bad choices.

SP1200
12-22-2009, 1:10 PM
Well I think the question is valid. Especially as CA has medical MJ laws allowing for people who prefer not to be hooked on painkillers!
Some of these people also are disabled veterans, who value their right to medicine, and firearms. I know this because this is the case with some of my family members.

SteveH
12-22-2009, 3:07 PM
If you are dealing dope and have a loaded firearm you are screwed.

If you are addicted to Narcotics and possess a firearm you are screwed. Even if you are not in possession of narcotics when contacted.

SteveH
12-22-2009, 3:07 PM
Well I think the question is valid. Especially as CA has medical MJ laws allowing for people who prefer not to be hooked on painkillers!
Some of these people also are disabled veterans, who value their right to medicine, and firearms. I know this because this is the case with some of my family members.

Marijuana is not a narcotic drug.

Nose Nuggets
12-22-2009, 4:15 PM
Well I think the question is valid. Especially as CA has medical MJ laws allowing for people who prefer not to be hooked on painkillers!
Some of these people also are disabled veterans, who value their right to medicine, and firearms. I know this because this is the case with some of my family members.
ding ding ding ding ding. we have a winner.


If you are dealing dope and have a loaded firearm you are screwed.

If you are addicted to Narcotics and possess a firearm you are screwed. Even if you are not in possession of narcotics when contacted.

i think everyone is aware of the legal ramifications of intent to sell controlled substances.

How would a court prove that you are addicted to a controlled substance if you have not admitted yourself to some kind of treatment and have on record that you did not complete treatment and no longer suffer from addiction?

neither of these two scenarios really fall into the circumstances of the OP anyway.

SP1200
12-22-2009, 11:44 PM
Marijuana is not a narcotic drug.

MJ is a schedule 1 controlled substance.

bwiese
12-23-2009, 12:05 AM
Committing any crime while in possession of a firearm can escalate both aspects of charges - the non-gun side as well as the gun side.

Regardless of what CA says, remember that MJ is illegal under Federal law. Even if CA didn't charge the drug due to 215, the "gun + drug" is a problem at both state and Fed levels.

Non-drug example: there was a 7-11 or AM/PM miniMart owner in Stockton area a coupla years ago who was selling some kinda illegal novelty "weapon" (nunchuck, throwing star, whatever) at the counter. He was not aware of the weird CA weapons bans for what are essentially cheap metallic toys.

From what I recall, the sheriff who popped him was just gonna seize the contraband weapons (though felony) but when he found a pistol present by the register too he was arrested/charged with (approx) being armed in commission of a felony. He was not a prohibited person, the gun was not illegal, etc. I have no idea how the case resolved, but it would take some damn good lawyering to skirt away from a slam dunk by a DA.

Don't be a drughead and have guns.
Don't hang around with drugheads while having guns.

SP1200
12-23-2009, 12:05 AM
See PC 12022. It addresses being armed while in felony possession of narcotics. Armed means "the gun was available for offensive or defensive use in committing the underlying offense."

So for most narcotics, the answer is a resounding yes, there is increased criminal liablity.

I don't think there is an enhancement that could attach to simple possession of pot, but transporting narcotics means essentially moving it from point A to B which could apply even within one's home, elevating simple possession of mj to a felony.

If the narcotics don't belong to you and you're not involved with them, you're probably not guilty of the underlying possession charge, in theory at least, not to say you wouldn't be convicted anyway.

I believe at the moment, even for MJ, it's health and safety code.
You get charged with the pot. And the firearms as an enhancement under the health and safety code.

SP1200
12-23-2009, 12:13 AM
Don't be a drughead and have guns.
Don't hang around with drugheads while having guns.

As I mentioned.

Well I think the question is valid. Especially as CA has medical MJ laws allowing for people who prefer not to be hooked on painkillers!
Some of these people also are disabled veterans, who value their right to medicine, and firearms. I know this because this is the case with some of my family members.

I understand where your coming form Bill. The collage kids with rooms full of pot and bongs. But the question is valid, as I mentioned above. Disabled vets (some of them) chose medical MJ over the V.A's handing out pills like there is no tomorrow! I wouldn't consider that to be a "drughead" type of situation. Would you?

It is a gray area, but you make sound so simple, when it is not.

johnthomas
12-23-2009, 12:30 AM
(quote) "If any charge enhancements would apply, what if the narcotics did not belong to the owner, and this could be verified by a drug test?"

A drug test does not disprove ownership of narcotics, only that at the time of the test, the person around the drugs did not have them in his system.
I have a friend that has a card from California that say's he can own and grow a certain amount of marijuana for his own medical use. I have an ffl that says I cannot. My ffl trumps the California card, I don't go over to his house..

SJgunguy24
12-23-2009, 12:38 AM
MJ is a schedule 1 controlled substance.

Marijuana is a Schedule I substance under the Controlled Substances Act (CSA). Schedule I drugs are classified as having a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision.
Pulled off the DEA website


This kinda baffles me. MJ does have medical uses and isn't a felony unless your popped with multible bags or more than an ounce.

If there are guns and dope in close proximity to each other and police are involved, thats not good. If you have roomates who are smoking dope and you have nowhere else to store your guns. Make sure you have a decent safe, and get a seperate rental agreement/contract. If the police do come you have something that says your room is seperate and you have nothing to do with their activites.

SP1200
12-23-2009, 6:47 AM
Marijuana is a Schedule I substance under the Controlled Substances Act (CSA). Schedule I drugs are classified as having a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision.
Pulled off the DEA website


This kinda baffles me. MJ does have medical uses and isn't a felony unless your popped with multible bags or more than an ounce.

If there are guns and dope in close proximity to each other and police are involved, thats not good. If you have roomates who are smoking dope and you have nowhere else to store your guns. Make sure you have a decent safe, and get a seperate rental agreement/contract. If the police do come you have something that says your room is seperate and you have nothing to do with their activites.

I doesn't baffle me. It's political. The feds don't want to change the status of medical MJ form SCH1 to SCH2 because of the pharmaceutical industry lobby. They don't want it to be covered by insurance. First all the states would have to adopt MJ laws and regulation, then the feds will slowly cave in.

More and more states are adopting medical MJ laws. Think about this: An old man with arthritis (who chooses to buy his medical MJ out of his pocket, rather then get his free painkillers paid for by his states medical program,) that state saves money when his prescriptions are not filled. And the old man, doesn't mind paying for the medical MJ because it doesn't mess with his appetite or digestive system.

My wife used to work in the ER at a local Reno hospital, and so many old people would come in complaining of stomach pain. They wold run tests, only to find out they were suffering form constipation from opiates. (side affects form pain meds.) The hospital would recommend cutting intake of meds to get things flowing again. Problem is patents would suffer withdraw. The only options in painkillers are ether opiates that cause the above problems, or NSAID's that usually causes stomach pain do to its hard digestive process. And Marinol, the pharmaceutical industry version of medical MJ in a pill, in most cases it ends up on the floor in a pile of puke! Patents just can't hold it down.

Even NV has adopted medical MJ laws now. Other states will fallow as they see the savings in the medical programs.
The feds don't want the reschedule MJ because then it would be covered by insurance.

SJgunguy24
12-23-2009, 7:07 AM
I doesn't baffle me. It's political. The feds don't want to change the status of medical MJ form SCH1 to SCH2 because of the pharmaceutical industry lobby. They don't want it to be covered by insurance. First all the states would have to adopt MJ laws and regulation, then the feds will slowly cave in.

More and more states are adopting medical MJ laws. Think about this: An old man with arthritis (who chooses to buy his medical MJ out of his pocket, rather then get his free painkillers paid for by his states medical program,) that state saves money when his prescriptions are not filled. And the old man, doesn't mind paying for the medical MJ because it doesn't mess with his appetite or digestive system.

My wife used to work in the ER at a local Reno hospital, and so many old people would come in complaining of stomach pain. They wold run tests, only to find out they were suffering form constipation from opiates. (side affects form pain meds.) The hospital would recommend cutting intake of meds to get things flowing again. Problem is patents would suffer withdraw. The only options in painkillers are ether opiates that cause the above problems, or NSAID's that usually causes stomach pain do to its hard digestive process. And Marinol, the pharmaceutical industry version of medical MJ in a pill, in most cases it ends up on the floor in a pile of puke! Patents just can't hold it down.

Even NV has adopted medical MJ laws now. Other states will fallow as they see the savings in there medical programs.
The feds don't want the reschedule MJ because then it would be covered by insurance.

Ah yes...the government's logic once again:rolleyes:
I have a family history of Glaucoma and i've never shown any symptoms. I think it's from all the dope i've smoked in my time.
My friends Aunt was dying of Cancer and she was miserable. I would take her a 1/4oz per week for 3 months untill she died. That was the only way she could eat and if only for a short time, it took her mind off the fact she was dying.
Most of my friends have Medical pot cards and they're all BS. I have a legit reason to get a card and I don't touch the stuff anymore.(been 5 years for pot)

SP1200
12-23-2009, 7:19 AM
Yea, I'm not a smoker eater.
But I have seen first hand how it has helped.

johnthomas
12-23-2009, 12:09 PM
MJ is addictive, no doubt. Why are all the protestors against MJ laws, hippy looking, not sickly old people just wanting to feel better. More than anything, MJ addicted people want this legalized so they won't have a criminal record when caught with it. There is medical uses for alcohol too but the abuse factor is far more reaching than the medical benefit. Substance abusers are emotionally stagnant. The commercial that used to be on where the guy and his friend are getting high saying I haven't changed a bit and mom yells up, have you got a job yet? Pretty much sums up extended MJ users. When my wife was going thru chemo she was sick all the time. Our son was 12, I asked her if she wanted MJ. She asked me what kind of message would that send to him, when you don't feel good, just take
something to make you feel good. Depressed, sad, happy? She tried other methods that worked.

bwiese
12-23-2009, 12:14 PM
Yea, I'm not a smoker eater.
But I have seen first hand how it has helped.

Irrelevant.

It's still a crime under Fed law, and if you have a gun you could be considered armed while committing a crime.

There's a fair chance you'd get off with some $$lawyering$$. But it certainly would not be "gun rights" case.

Cranium
12-23-2009, 12:34 PM
I would take her a 1/4oz per week for 3 months untill she died.
:eek:
Now THAT's some consumption. Or maybe I'm just out of touch. Actually, thinking about it, I guess I've known some folks over the years that probably burned at least that much. Then again, I know plenty of fellas that will still tear through a six or twelve pack on a week night...


Substance abusers are emotionally stagnant. The commercial that used to be on where the guy and his friend are getting high saying I haven't changed a bit and mom yells up, have you got a job yet? Pretty much sums up extended MJ,alcohol, painkiller users.
Fixed it for you.

These discussions always crack me up. The government and its various business backers have apparently done an EXCELLENT job over the last 100 years of vilifying a frigging plant that, even discounting its myriad ecological benefits, is no more (and arguably far less) dangerous than substances that are perfectly legal and socially acceptable (thanks big business!)

SP1200
12-24-2009, 10:05 AM
Irrelevant.

It's still a crime under Fed law, and if you have a gun you could be considered armed while committing a crime.

There's a fair chance you'd get off with some $$lawyering$$. But it certainly would not be "gun rights" case.

I understand. I just didn't agree with your "drughead" statement.

dustoff31
12-24-2009, 10:28 AM
I doesn't baffle me. It's political. The feds don't want to change the status of medical MJ form SCH1 to SCH2 because of the pharmaceutical industry lobby. They don't want it to be covered by insurance. First all the states would have to adopt MJ laws and regulation, then the feds will slowly cave in.....

The feds don't want the reschedule MJ because then it would be covered by insurance.


Why would it have to be covered by insurance?

There are all sorts of procedures and drugs that aren't covered by insurance.

wash
12-24-2009, 10:33 AM
My mom had cancer and chemo twice and she's such a busy body she ran around doing pointless stuff until she got double pneumonia.

She was really dumb to not use medical marijuana and chill out a bit. Now she has heart problems and I bet a lot of that is from not taking the time to rest and concentrate on her health.

With that said, be a single issue person, if marijuana is so important to you, ditch the guns and toke up. If guns are so important to you, ditch the weed and drink a beer instead.

Being a vet has nothing to do with it, if you want to go against federal law, don't screw things up for people who are keeping their nose clean.