The Graves Act carries serious consequences. Whether you are from New Jersey or were visiting from out of state with a firearm you are licensed to carry in your home state, the potential penalties associated with a Graves Act offense make it crucial that you speak with a skilled attorney as soon as possible.
The Graves Act imposes specific mandatory minimum sentences for offenders convicted of crimes that involved firearms. The Act may also apply to the mere possession of firearms if that possession was illegal or unlawful. The Act does not necessarily impose an additional prison sentence for firearms-related offenses but requires that convicted defendants serve a certain amount of time in prison.
At the Law Offices of John J. Zarych, we are committed to providing every client with an aggressive and thorough defense. We maintain good communication with our clients throughout their cases and provide clear guidance on what to expect. To schedule a consultation with one of our New Jersey criminal defense lawyers, call our firm at (609) 616-4956 or reach us online.
When Does the Graves Act Apply in New Jersey?
The Graves Act can be found under § 2C:43-6 of the New Jersey Code of Criminal Justice and will kick in when a defendant is convicted of certain crimes or convicted under certain circumstances. The Act is designed to punish offenders who use firearms when they commit crimes or commit other gun-related crimes. Therefore, the Act will likely apply if your case involves firearms or you have a prior firearm conviction.
The Act applies to convictions of certain firearm-related offenses and convictions of defendants who have previously been convicted of specific crimes involving a firearm. The Graves Act will apply if the defendant…
- was in possession of a sawed-off shotgun or a defaced firearm.
- was in possession of a firearm for an unlawful purpose.
- was in possession of a firearm while they committed a violent felony.
- unlawfully possessed machine guns, handguns, rifles, shotguns, or assault firearms.
- is a prohibited person who may not legally own a firearm. Such people include defendants previously convicted of certain felonies, committed to mental institutions, or convicted of the illegal sale of drugs other than a disorderly persons offense.
- is charged with the illegal manufacture, sale, or transportation of illegal firearms like machine guns, sawed-off shotguns, defaced firearms, and assault firearms.
The Graves Act may also apply when the defendant was previously convicted of certain crimes. The defendant need not have been convicted in New Jersey and could have been convicted in any state. A defendant may be sentenced under the Graves Act if they were previously convicted of:
- Aggravated Assault
- Aggravated Sexual Assault
- Aggravated Criminal Sexual Contact
If any of these previous convictions involved the use of a firearm, the Graves Act would apply in your case. Please call our Cape May criminal defense attorneys to help to understand the Act and how it might apply to you.
Penalties Under the Graves Act in New Jersey
The New Jersey Graves Act was created in 1981 to severely punish individuals accused of weapons offenses. It mandates a minimum three-year prison term for anyone convicted of a crime using a weapon. When it applies, the Graves Act imposes a mandatory minimum sentence that is at least one-half of the total sentence handed down by the court, or 42 months, whichever is longer. For convictions of fourth-degree crimes, the minimum sentence is one-half the total or 18 months, whichever is longer. Defendants are ineligible for parole while they serve their mandatory minimum sentences under the Graves Act.
There are a number of factors that could influence a potential penalty for a Graves Act offense. Initially, the court will look at the underlying offense:
- First-degree crimes — prison sentences may range from 10 to 20 years
- Second-degree crimes — prison sentences may range from five to 10 years
- Third-degree crimes — prison sentences may range from three to five years
- Fourth-degree crimes — incarceration for up to 18 months
If certain aggravating factors are present, the potential prison term may be extended. The Graves Act may not necessarily raise the ceiling on your prison term. However, it might raise the floor. The mandatory minimum prison term you must serve under the Graves Act will depend on the final sentence imposed by the court.
Gun-owners who are properly licensed to own a firearm in their home state may not necessarily be able to lawfully own a gun in New Jersey. These defendants often come to us after a traffic stop. The defendants are usually driving through New Jersey, are pulled over, and inform the police officer that they have a firearm in the vehicle. Being forthcoming about your weapons during a traffic stop is required in many states, so the defendant thinks they are following proper procedures. However, if they are not licensed in New Jersey, they will be arrested and may be sentenced under the Graves Act.
The Act imposes a minimum sentence that is equal to one-half of the total sentence. That means if you are sentenced to a total of 10 years in prison, you must serve at least 5 of those years, during which time you will not be eligible for parole. Our Ocean City criminal defense lawyers can help you assess the penalties against you and fight your charges in court.
Out-of-State Offenders Sentenced in New Jersey
Many out-of-state residents who have a permit to carry a firearm in their home state are surprised when faced with gun possession charges in New Jersey. A permit in one state does not make it legal to carry a gun in New Jersey. Visitors may find themselves under arrest and facing Graves Act penalties associated with unlawful possession of a firearm.
Not only that, but your previous convictions for firearm-related crimes in other states may cause the Graves Act to apply in your New Jersey case. For example, a murder or manslaughter charge in any state would affect how the Graves Act applies in your New Jersey criminal case.
Our New Jersey criminal defense attorneys can help out-of-state defendants fight their charges and hopefully get a Graves Act waiver.
Getting a Graves Act Waiver in New Jersey
In some cases, it may be possible to avoid the penalties of the Graves Act by securing a waiver. Waivers cannot always be secured in every case and some defendants may not be eligible. To get a waiver, the prosecutor on your case must file a motion with the court that contains compelling reasons why you should get a waiver. Usually, these compelling reasons involve extraordinary circumstances that remove your case from the scope of the legislative policy behind the Graves Act.
A Graves Act waiver motion must demonstrate that the defendant has no previous convictions under the Graves Act and that imposing the Graves Act would not be in the best interest of justice. Generally, this means the mitigating factors of your case must substantially outweigh the aggravating factors.
There are several possible outcomes of a motion for a Graves Waiver. First, the judge could grant the motion and you could be sentenced to a probationary term rather than prison. Second, the judge could deny the motion and you would be sentenced with an increased mandatory minimum. Third, the judge could grant you a partial waiver and reduce your mandatory minimum sentence to only one year rather than one-half of the total sentence. For help with your gun charges, call our criminal defense attorneys.
The Importance of Early Intervention in Graves Act Cases in New Jersey
For anyone facing penalties under the Graves Act, the sooner you speak with a defense attorney, the better. Our New Jersey criminal defense attorneys have extensive experience handling gun charges. We will always look for opportunities to have the underlying charges dismissed or at least minimize their impact. Talk to one of our lawyers today. Your initial consultation with us is free. You can contact the Law Offices of John J. Zarych using our online information form or call toll-free at (609) 616-4956.