New Jersey has some of the strictest gun possession laws in the country. One of the laws that contribute to this strictness is the Graves Act of 1812. This Act has been on the books for a long time in New Jersey, but it has been altered and its enforcement has changed over the years. The main purpose of this statute is to create mandatory minimum sentences for many gun crimes, but these often have negative effects and overly punish people for crimes that may not deserve such strict penalties. The Atlantic City gun crime defense lawyers at the Law Offices of John J. Zarych explain the Graves Act and its penalties.
Crimes with Minimum Sentences Under the NJ Graves Act
The purpose of the Graves Act is to create mandatory minimum sentences for many gun crimes. These mandatory minimums work to punish people for three main areas of offenses related to guns and firearms:
- Gun possession crimes
- Use or possession of a firearm during the commission of another crime
- Use or possession of a machine gun or assault weapon during another crime
More specifically, the following gun possession offenses have minimum sentences under the Graves Act:
- Possession of a firearm for unlawful use
- Possession of a firearm during certain drug crimes
- Possession of a machine gun, handgun, rifle, shotgun, sawed-off shotgun, assault weapon, or defaced firearm
- Manufacturing or transporting weapons like machine guns, sawed-off shotguns, assault weapons, or defaced firearms
- Possession of a firearm after certain offenses, domestic violence offenses, or weapon seizure from a domestic violence order
Additionally, there is a minimum sentence if you possessed or used a firearm during any of the following crimes – and a more severe mandatory minimum if you used a machine gun or assault weapon:
- Aggravated assault
- Aggravated sexual assault
- Aggravated sexual contact
- Drug manufacturing or distribution (only enhanced further for machine guns or assault weapons)
What is The Minimum Sentence for Graves Act Crimes?
As mentioned, the Graves Act creates minimum sentences in three areas: gun possession crimes, use of a weapon during other crimes, and use of a machine gun or assault weapon during other crimes. The mandatory minimums are the same for gun possession crimes and use of a firearm during certain crimes, but the minimums are even higher for use of a machine gun or assault weapon.
Mandatory Minimum Sentences for Gun Possession and Use of a Firearm Crimes
The law states that the mandatory minimum sentences is the greater of half the court’s sentence or 42 months (3.5 years). This means that if you are sentenced to 5 years in prison, the mandatory minimum will ensure you serve at least 3.5 years. If the sentence was 8 years, you will serve 4.
If the crime was a fourth degree crime – a lower level offense – the mandatory minimum will be 18 months (the maximum authorized sentence for fourth degree crimes).
During this time, you will be ineligible for parole, meaning you cannot get early release until you serve the mandatory time.
Mandatory Minimum Sentences for Machine Gun and Assault Weapon Crimes
For using a machine gun or assault weapon in another listed crime, your mandatory minimum will be as follows:
- 10 years if the crime is a first or second degree crime
- 5 years if the crime is a third degree crime
- 18 months for a fourth degree crime (the statutory maximum sentence for these crimes)
Again, you are not eligible for parole during this time.
Defenses to the Graves Act Minimum Imprisonment Terms
In some cases, you may be able to avoid the minimum sentence by beating the case against you. First of all, the government must prove that you committed the act that increases the mandatory minimum. That means that if the penalty is enhanced for possession of a firearm, the government must prove you actually used or possessed the firearm before they can increase the mandatory minimum sentence.
According to § 2C:43-6(d)(1) and (h), the government needs to prove you had a firearm “by a preponderance of the evidence.” This means that they must prove it is more likely than not that you did possess the firearm – a lower standard than the “beyond a reasonable doubt” standard for the rest of your case.
Additionally, this mandatory minimum should never apply to toy guns. BB guns, air guns, and spring guns should not be subject to this mandatory minimum penalty.
NJ Graves Act Waivers
If the mandatory minimum sentence is unfair in your case, the prosecutor in your case can request a “waiver” of the mandatory minimum sentence. This can only happen if you have no prior gun charges and it best serves justice to avoid the mandatory minimum. Judges can also request a waiver, but the prosecutor may need to approve their request.
If you are eligible for a waiver, you may apply to Pre-Trial Intervention (PTI), a diversionary program that helps you avoid jail time and a criminal record. You may also get a sentence of probation instead of jail time. However, the waiver can turn a sentence into probation, or it can lower the mandatory minimum to 1 year instead of dropping it altogether.
Graves Act for Out of State Defendants in New Jersey
In 2014, the NJ Attorney General wrote a memorandum for all prosecutors in the state saying that the mandatory minimum should not be used against defendants from other states if they legally possessed a gun according to their state’s laws. This means that visitors from other states who own a gun legally according to their state’s laws should not serve a mandatory minimum under the Graves Act for violating NJ law. If you were charged with weapon possession in a casino, for instance, this situation might apply to you.
While it is still illegal to possess a gun in New Jersey, the mandatory minimum should not apply. Instead, you should be permitted to apply to PTI if you qualify. If you do not qualify for PTI or the prosecutor thinks you should not enter PTI, the prosecutor is supposed to offer you a plea deal that includes probation instead of jail time.
Call Our New Jersey Gun Crime Lawyers for a Free Legal Consultation
If you are arrested for a gun possession crime in New Jersey, or if you were arrested for another crime that involved the use of a firearm, you could be facing strict mandatory minimum sentences. The Atlantic City criminal defense lawyers at the Law Offices of John J. Zarych may be able to take your case, fight the mandatory minimums, and seek to have your charges and penalties reduced. For a free legal consultation, call our law offices today at (609) 800-2942.