By:  Mary Agramonte

Georgia law prohibits people convicted of felonies from possessing firearms. Similarly, people currently on first offender probation are also not allowed to carry guns. You must be discharged from probation as a first offender without an adjudication of guilt in order to lawfully possess a firearm. Felons cannot have guns unless and until their rights are restored in the State of Georgia.

But what if you are a convicted felon and someone else near you owns a gun? Or what if you are in the same vehicle as someone who has a gun? Likewise, one of the questions we are asked most often is “can my spouse or partner have a gun in the same home as me if I am a felon?”

The short answer is: it depends. The question that is going to be asked by law enforcement and the Courts is whether or not the State can prove YOU possessed the gun. You do not have to actually have it in your hand or your pocket in order to be charged and convicted with Possession of a Firearm by a Convicted Felon. In some instances, it simply has to be near you, or in a place where the circumstances point to the weapon being yours. This is because Georgia law recognizes two different kinds of ‘possession.’ The first is Actual Possession and the other kind is Constructive Possession.

Actual Possession is where you truly possess the gun: it is in your pocket or in your car, for example. With Constructive Possession, the line can be a little more blurry on whether or not you will be arrested or convicted of possession the firearm by a convicted felon. When  dealing with Constructive Possession, you can be arrested for possessing a firearm even if you never possessed it. The State can prove it through circumstantial evidence. For example, constructive possession occurs where a gun is in a shared hotel room with you and a friend, and you know the gun is there, and you tell police where it is. In that situation, the State will allege you had possession of the firearm- even if you never touched it. Another example of constructive possession would be if the gun was found in the drawer of a shared bedroom, near clothes that match your gender. Additionally, you can be charged with possession of a firearm by convicted felony if your co-defendant carried a gun in an armed robbery that you were a part of even if you never touched the gun.

So the answer to the age-old question is yes, your spouse can own a gun as long as you don’t possess it- actually or constructively, but to be wary as the distinction is not always clear. If you or a loved one has been arrested for Possession of a Firearm by a Convicted Felon, call us today for a free consultation on the case at 404-581-0999.