Constitutional Defenses to Unlawful Discharge of a Firearm

Unlawful discharge of a firearm is a serious crime in Arizona. If you are convicted of unlawfully discharging a firearm, you will have a felony on your record for the rest of your life. However, just because you were arrested does not mean that you will be found guilty. In addition to several defenses that are built into the statute, there are also constitutional defenses to unlawful discharge of a firearm offenses. At the Law Office of James E. Novak, we proudly represent clients facing serious firearms offenses, standing up for their rights and aggressively defending their freedom.

Under Arizona Revised Statutes § 13-3107, the crime of unlawful discharge of a firearm prohibits shooting a gun within or into the boundary of any city or town while exhibiting criminal negligence. While § 13-3107 does not specify what constitutes criminal negligence, a few examples where prosecutors routinely bring these charges include:

• Drive-by shooting;
• Shooting a firearm into the air;
• Firing a gun in a person’s general direction without aiming; or
• Firing a gun at another vehicle as a result of road rage.

Unlike other gun crimes, such as weapons misconduct, possession of a gun is not an element of unlawfully discharging a firearm. However, there are constitutional defenses to unlawful discharge of a firearm charges that may prevent the prosecution from being able to convict you.

Because prosecutors do not need to present the gun to convict someone of unlawful discharge of a firearm, some of the constitutional defenses that work well in other gun cases won’t help you avoid criminal liability. However, there are several constitutional defenses that can be used, depending on the evidence the government plans to use against you.

If you were arrested for unlawfully discharging a firearm after making a statement to a police officer or detective, chances are that the prosecution will use your statement against you. However, prosecutors can only use statements that were obtained lawfully and not in violation of your Fifth Amendment rights against self-incrimination. When police officers are investigating a crime, they need to provide Miranda Warnings to anyone they have probable cause to believe committed the crime. If they fail to do so, any statements made are not admissible in court.

Many unlawful discharge of a firearm cases proceed on eyewitness testimony; for example if someone claims to have seen you fire a gun. However, just because someone makes a statement doesn’t mean that their statement can be used against you at trial—they have to actually come to court. If the witness doesn’t show up at trial, it would be a violation of your Confrontation Clause rights for the judge or jury to hear the witness’s statement.

In some cases, prosecutors may try to argue that you were the one who fired a gun based on the fact that you own a similar gun. In these situations, a pre-trial motion to suppress could prevent the prosecution from admitting the evidence into trial.

If you were recently arrested for the crime of unlawful discharge of a firearm, it is important that you understand all possible defenses that can reduce your exposure. At the Law Office of James E. Novak, we have more than 20 years of hands-on experience aggressively defending our clients from the harsh consequences of a criminal conviction. We take a fresh approach to every case we handle, ensuring that you receive the defense you need, deserve, and are legally entitled to. To learn more, and to schedule a free consultation with Attorney Novak today, call 480-413-1499.