Gun crimes and gun specs
Your client is stopped for drunk driving, and during an inventory search of the car, the police find a gun in the trunk. He winds up being charged with one of the more arcane offenses in Ohio's scheme of criminal statutes, RC 2923.16(D), which prohibits driving with a gun in your car if you're drunk, and is a fifth-degree felony. For good measure, the prosecutor also throws in a 1-year firearm specification, which requires the judge to tack on an additional year to whatever prison sentence he gives you.
You present the court with a well-reasoned, cogently-argued brief asserting that this simply isn't logical. It's one thing to give somebody an extra year because they have a gun when they commit a drug offense or a kidnapping, but here the offense itself involves the possession of a gun. It doesn't make much sense to say, "It's illegal to do this with a gun, and by the way, if you have a gun when you do this, we're going to punish you more severely than if you don't." Pretty good argument, huh?
Well, that and the proverbial $3.75 will get you a cup of moccha latte at any of the three Starbucks within fifty feet of your office building.
That very argument was presented to the 4th District a couple weeks back in State v. Aubrey, and the panel was so enthralled with it that they spent a whole paragraph discussing it. Well, they didn't actually discuss it; they cited three cases where they'd rejected it before, stifled a yawn, and said they didn't see any reason to change their minds.
Whatever the logical merits of the argument, it's not going anywhere. There are a number of statutes in Ohio which specifically define the crime in terms of the use of a gun -- such as shooting into a habitation, under RC 2923.161 -- and courts (and not just the ones in the 4th District) have routinely rejected the argument that this precludes tacking on a gun specification.
The biggest problem with the argument is that the legislature very obviously intended this result. The section of the code mandating imposition of the additional gun enhancements, RC 2929.14(D), provides only three exceptions: carrying a concealed weapon, carrying a gun into a courthouse, and having a weapon under disability. (And it can be imposed for the last one if the defendant's been convicted of a 1st or 2nd degree felony, or was released from prison or post-release controls for the underlying offense within the past five years.)
There's one argument you might have here, though: if you could show that the prosecutor's office is being selective in when it charges gun specification enhancements with those crimes, you might be able to make an argument based on selective prosecution. Good luck with finding out that kind of information.
Which brings me to another pet peeve of mine. It just took me 37 seconds to find out that, over the past three years, Colorado Rockies outfielder Matt Holliday has hit .507 when the count is 2 and 1, but only .172 when it goes to 2 and 2. Yet I have no idea in the world how many times someone has been charged with weapons under disability in Ohio, and how many of those times a gun enhancement charge has been added, nor do I have any idea how to find out. And, I'd wager, neither does anyone else.
We live in an information society, and we're constantly making important policy decisions in the area of criminal justice, and I think that a lot of times we really don't have the information necessary to make those decisions. I think it would be useful to collect that information and make sure it's available.
By the way, the Oddball Factoid for the day is that one of the other provisions of the transporting firearms statute is that it prohibits you from firing a gun from a moving car. There's an exception, though: you can shoot at a groundhog or coyote from a moving car. Before you run out and use the "but my client thought it was a groundhog!" defense in your next drive-by shooting case, though, the exception only applies if the property where the shooting takes place is zoned or used for agriculture.
Comments