In Wisconsin, it’s not just about whether you carry a gun. You can get in trouble for having a gun close by, even if it’s not in your hand or pocket. This concept is called constructive possession of a firearm. It is a significant issue, particularly for individuals who are banned from owning guns, such as felons. So, how can this affect you if you’re facing charges in Milwaukee or elsewhere in Wisconsin?
Actual Possession vs. Constructive Possession
Before diving into constructive possession, let’s discuss what possession means regarding firearms.
Actual possession is pretty straightforward. If you’re caught holding a gun, wearing it in a holster, or keeping it tucked in your waistband, that’s actual possession.
Constructive possession, on the other hand, can be more complicated. You don’t have to physically hold the firearm to be charged with possession. It only needs to be in a location where you can access or exert control over it, and you must know it was there.
Wisconsin’s Criminal Jury Instructions provide further clarity on these concepts. But, for example, if there’s a gun in the glove compartment of your car, you might not be holding it, but if prosecutors can prove you knew it was there and could have accessed it, they could argue you had constructive possession.
How Does Wisconsin Define Constructive Possession of a Firearm?
Wisconsin law doesn’t let people off the hook because they didn’t have the gun in their hand when they were caught. Constructive possession is a way for prosecutors to hold individuals accountable for firearms that are within their control.
Here’s how it works:
- Knowledge: The prosecution must show you knew the firearm existed. They might point to evidence like text messages, fingerprints, or testimony from someone who saw you with the gun.
- Control: They also need to prove you had some level of control or access. For example, if a gun is found in your bedroom closet or under the seat of a car you were driving, they might argue it was within your control.
Constructive possession is especially relevant in cases involving felons who are legally prohibited from possessing firearms under any circumstances.
Why Is Constructive Possession Important for Felons?
Under Wisconsin law, felons cannot legally own or possess firearms, whether it’s actual or constructive possession. This means even if a felon isn’t physically holding a gun, they could still face serious consequences if they’re tied to a firearm in any way.
Imagine this scenario: A felon stays at a friend’s house, and police execute a search warrant. During the search, they find a gun hidden under the couch in the living room. Even if the felon didn’t own the gun or wasn’t aware it was there, prosecutors might argue constructive possession, claiming the felon had access to and control over the area where the firearm was found.
In Wisconsin, those with felony convictions for firearm possession face serious consequences, such as prison time and substantial fines, which can significantly impact their futures. Wisconsin Statute § 941.29 outlines these penalties, which should not be taken lightly.
How to Prove the Firearm Wasn’t Yours
Constructive possession charges don’t have to mean an automatic conviction. A strong defense can challenge the prosecution’s claims and raise doubts about their evidence. Here’s how:
- Argue Lack of Knowledge: If you didn’t know the firearm existed, you can’t be held accountable for possessing it. For example, if someone hid the gun in your car or home without your knowledge, your attorney can argue you weren’t aware of its presence.
- Show Lack of Control: Even if you knew the gun was there, the prosecution still needs to prove you had the ability to control it. Maybe the gun was locked in a safe you didn’t have the combination for or in an area of a shared home that wasn’t accessible to you.
- Highlight Weak Evidence: Constructive possession cases often rely on circumstantial evidence, which can be challenged. For instance, fingerprints might not prove knowledge, and witness testimony could be unreliable. A skilled attorney can dissect the prosecution’s case to expose its weaknesses.
How to Fight a Constructive Possession of a Firearm Charge
Facing a constructive possession charge can be intimidating, but there are steps you can take to protect yourself:
- Hire an Experienced Attorney: This isn’t a battle you want to face alone. A lawyer understanding Wisconsin firearm laws can analyze the evidence, identify flaws in the prosecution’s arguments, and build a strong defense.
- Gather Evidence: The more proof you have to support your case, the better. This could include witness statements, surveillance footage, or anything else that shows you weren’t connected to the firearm. Your attorney can acquire all available evidence in your case.
- Challenge the Prosecution’s Case: A good defense attorney will poke holes in the prosecution’s narrative. You could avoid a conviction if they can create reasonable doubt about your knowledge or control over the firearm.
How Wisconsin Courts Handle These Cases
In Wisconsin, constructive possession cases demand careful consideration of the facts, as prosecutors are required to demonstrate both knowledge and control beyond a reasonable doubt. It can be challenging to tackle this without solid proof. In Milwaukee, judges and juries approach firearm cases with utmost seriousness, especially when they involve felons or individuals barred from gun possession.
It is critical to remember that the prosecution has the burden of proof. Therefore, securing a skilled Milwaukee criminal defense lawyer who comprehensively understands these legal intricacies is necessary for presenting a strong defense.
Get a Skilled Criminal Defense Attorney from Hart Powell, S.C. on Your Team
Constructive possession of a firearm might sound like a legal technicality, but it’s a concept that can have life-changing consequences. Whether you’re a felon prohibited from owning guns or someone caught up in a misunderstanding, these charges are serious and require immediate attention. Don’t wait to get help. The weapons charge Milwaukee criminal defense lawyers at Hart Powell, S.C. have the experience you need to build a strong defense. Call (414) 271-9595 or visit us online today to discuss your case and protect your future.
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