A penalty enhancement involving firearms, in particular, is a public policy decision on the part of Michigan legislature. The idea is that if a person commits a felony and has a weapon, they could be considered a particularly dangerous person and could deserve more punishment.
When facing criminal charges involving a firearm and facing the possibility of penalty enhancements, a Michigan gun lawyer can help secure the most positive outcome possible under the facts of a case.
Usually, a penalty enhancement occurs when someone is charged with another felony and during that commission of that felony, they have a weapon in their possession whether they use the weapon or not. When they have the weapon in their possession, they are subject to a felony firearm charge. A person who is found guilty of felony firearm can be put in prison for an additional 2 years. Upon a second conviction the person will get 5 years and for a third or subsequent conviction, the person will get an additional 10 years in prison. It must run consecutive to it, so it can significantly enhance or lengthen the amount of time the individual spends in prison or in jail.
Having a weapon can also be the basis for a totally separate crime, even when the underlying crime is a misdemeanor. For example, when a person is charged with drunk driving and they have a weapon in their possession, they can be charged with possessing a weapon under the influence.
In a similar situation, and one that might be considered be considered an enhancement to the underlying drunk driving case. If the individual has a CPL and is charged with any crime, including drunk driving, their CPL is suspended or revoked. In some instances, it can be revoked permanently. Even if they did not have the weapon in their possession at the time they were drunk driving. A penalty enhancement in a firearm case can cause severe penalties, and a gun attorney in Michigan can best help mitigate those charges.
The specific penalty enhancement is based on whether the person has a prior felony firearm offense, but in all instances, runs consecutive to the underlying sentence. The enhancement is either 2, 5 or 10 years. Also, this enhancement cannot run concurrently. That means, for example, that if an individual is charged with a larceny crime and they have a weapon in their possession at the time and received six months for the larceny, they can receive up to an additional year for the felony firearm. The individual does not have to use it in the commission of the crime, simply having it is enough.
If an individual is charged with two separate felonies, the sentences run concurrently. If someone were to receive five years for each felony, those five-year sentences would run at the same time. In a consecutive sentence, the second sentence does not start until the first sentence is ended. It is a much more severe penalty and is the way the felony firearm charge works. If a person commits a felony assault and is sentenced to one year, but also is convicted of a felony firearm-first offense, they will get an additional 2 years on top of the one year, consecutively.
The same defenses that apply in any firearms crime are available to someone facing penalty enhancements caused by firearms. For example, the prosecutor must prove that the individual was in possession of a firearm and that it was not something else they thought was a firearm. The prosecutor also must prove that the individual did not have a lawful reason for possessing the weapon, and they must prove that any limits that might apply were adhered to by the police.
All of the laws that apply to search and seizure that the police came into lawful possession and knowledge of the weapon, to begin with, apply as well. If the police came into unlawful possession of a gun, the prosecutor may not be able to properly charge the individual with a felony firearm.
The penalties for weapons charges are draconian and can have long lasting consequences. In fact, having a firearm in the commission of a felony can add up to 10 years to the underlying sentence, and the additional 10 years runs consecutively. Also, the firearms laws are also very complicated and have become more complicated in recent years due to the ability to easily obtain a concealed weapons permit. Due to the complexity of the law and the severity of the consequences, it is always important that a person hires a knowledgeable attorney to ensure that they obtain the best possible result.