Defending the Sentencing Enhancement for Firearms in Felony Marijuana Possession Cases

All too often, inexperienced attorneys defending felony marijuana cases fail to fully appreciate the incredibly significant impact that evidence of a firearm can have on sentencing.

How significant, you ask?

Under Iowa Code section 124.401(1)(e), a person in the immediate possession or control of a firearm while possessing marijuana for delivery shall be sentenced to twice the term provided.  As a result, the nickel for a few ounces of bud may be enhanced to a dime simply because of a gun.  In other words, the Glock 19 seized by the task force now earns the unsuspecting person 10 years behind bars.

Unfortunately, it gets worse.

No part of that sentence can be deferred or suspended.

That means you do not pass Go and you don’t collect $200.

It’s straight to prison.  Even for a first offense.  And there’s no ability to expunge the matter upon the successful completion of probation.

That’s why the experienced drug defense attorneys at GRL Law challenge every piece of evidence and defend, when necessary, our client’s liberty at trial.  Even if that purpose is to simply challenge the firearm enhancement in order prevent the court from doubling the sentence.

It’s important to keep in mind that immediate possession of a firearm is not the same as immediate control.  The former requires actual possession on one’s person like a holstered pistol or a firearm tucked in a waistband at the time of arrest.  On the other hand, immediate control necessitates only that the firearm be in such close proximity to the person to enable them to claim immediate dominion over it.  In either event, the State must also establish that the person had actual knowledge of the presence of the firearm.

In most cases, the firearm is discovered in a closet, under a mattress or in a safe or purse during a search warrant raid.  Is the premises in the exclusive possession of the accused?  If so, then knowledge coupled with the ability to maintain control over the firearm may be inferred, but can be rebutted by evidence showing the person had no actual knowledge.

Where there is joint possession, such as roommates in an apartment, knowledge and the ability to control a firearm cannot be simply inferred.  It must be established by proof instead.  This may consist of evidence of actual knowledge, incriminating statements to police, such as admitting to knowing the firearm’s location, or other circumstances from which a jury might lawfully infer knowledge.  A person’s frequent presence in the residence or use of a particular room to sleep may not be enough to generate a jury question on either knowledge or control.

The choice of an attorney to defend your interest in a felony marijuana case may be one of the most important decisions you can make.  When it comes to firearms and marijuana, it can mean the difference between liberty and prison.

This is where GRL Law can make a real difference.  In situations where there may not be a defense to the possession of marijuana, we can still make a difference where a firearm is concerned.  We have the trial experience and skill to rebut evidence of knowledge and control in order to eliminate the firearm from consideration.