BILL REQ. #: H-3176.2
State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/18/12. Referred to Committee on Judiciary.
AN ACT Relating to unlawful possession of a firearm in the first degree; amending RCW 9.41.040; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.41.040 and 2011 c 193 s 1 are each amended to read
as follows:
(1)(a) A person, whether an adult or juvenile, is guilty of the
crime of unlawful possession of a firearm in the first degree, if the
person owns, has in his or her possession, or has in his or her control
any firearm after having previously been convicted or found not guilty
by reason of insanity in this state or elsewhere of any serious offense
as defined in this chapter or unlawful possession of a firearm in the
second degree, other than unlawful possession of a firearm in the
second degree under subsection (2)(a)(i)(B) of this section.
(b) Unlawful possession of a firearm in the first degree is a class
B felony punishable according to chapter 9A.20 RCW.
(2)(a) A person, whether an adult or juvenile, is guilty of the
crime of unlawful possession of a firearm in the second degree, if the
person does not qualify under subsection (1) of this section for the
crime of unlawful possession of a firearm in the first degree and the
person owns, has in his or her possession, or has in his or her control
any firearm:
(i) After having previously been convicted or found not guilty by
reason of insanity in this state or elsewhere of (A) any felony not
specifically listed as prohibiting firearm possession under subsection
(1) of this section, or (B) any of the following crimes when committed
by one family or household member against another, committed on or
after July 1, 1993: Assault in the fourth degree, coercion, stalking,
reckless endangerment, criminal trespass in the first degree, or
violation of the provisions of a protection order or no-contact order
restraining the person or excluding the person from a residence (RCW
26.50.060, 26.50.070, 26.50.130, or 10.99.040);
(ii) After having previously been involuntarily committed for
mental health treatment under RCW 71.05.240, 71.05.320, 71.34.740,
71.34.750, chapter 10.77 RCW, or equivalent statutes of another
jurisdiction, unless his or her right to possess a firearm has been
restored as provided in RCW 9.41.047;
(iii) If the person is under eighteen years of age, except as
provided in RCW 9.41.042; and/or
(iv) If the person is free on bond or personal recognizance pending
trial, appeal, or sentencing for a serious offense as defined in RCW
9.41.010.
(b) Unlawful possession of a firearm in the second degree is a
class C felony punishable according to chapter 9A.20 RCW.
(3) Notwithstanding RCW 9.41.047 or any other provisions of law, as
used in this chapter, a person has been "convicted", whether in an
adult court or adjudicated in a juvenile court, at such time as a plea
of guilty has been accepted, or a verdict of guilty has been filed,
notwithstanding the pendency of any future proceedings including but
not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. Conviction includes a dismissal
entered after a period of probation, suspension or deferral of
sentence, and also includes equivalent dispositions by courts in
jurisdictions other than Washington state. A person shall not be
precluded from possession of a firearm if the conviction has been the
subject of a pardon, annulment, certificate of rehabilitation, or other
equivalent procedure based on a finding of the rehabilitation of the
person convicted or the conviction or disposition has been the subject
of a pardon, annulment, or other equivalent procedure based on a
finding of innocence. Where no record of the court's disposition of
the charges can be found, there shall be a rebuttable presumption that
the person was not convicted of the charge.
(4)(a) Notwithstanding subsection (1) or (2) of this section, a
person convicted or found not guilty by reason of insanity of an
offense prohibiting the possession of a firearm under this section
other than murder, manslaughter, robbery, rape, indecent liberties,
arson, assault, kidnapping, extortion, burglary, or violations with
respect to controlled substances under RCW 69.50.401 and 69.50.410, who
received a probationary sentence under RCW 9.95.200, and who received
a dismissal of the charge under RCW 9.95.240, shall not be precluded
from possession of a firearm as a result of the conviction or finding
of not guilty by reason of insanity. Notwithstanding any other
provisions of this section, if a person is prohibited from possession
of a firearm under subsection (1) or (2) of this section and has not
previously been convicted or found not guilty by reason of insanity of
a sex offense prohibiting firearm ownership under subsection (1) or (2)
of this section and/or any felony defined under any law as a class A
felony or with a maximum sentence of at least twenty years, or both,
the individual may petition a court of record to have his or her right
to possess a firearm restored:
(i) Under RCW 9.41.047; and/or
(ii)(A) If the conviction or finding of not guilty by reason of
insanity was for a felony offense, after five or more consecutive years
in the community without being convicted or found not guilty by reason
of insanity or currently charged with any felony, gross misdemeanor, or
misdemeanor crimes, if the individual has no prior felony convictions
that prohibit the possession of a firearm counted as part of the
offender score under RCW 9.94A.525; or
(B) If the conviction or finding of not guilty by reason of
insanity was for a nonfelony offense, after three or more consecutive
years in the community without being convicted or found not guilty by
reason of insanity or currently charged with any felony, gross
misdemeanor, or misdemeanor crimes, if the individual has no prior
felony convictions that prohibit the possession of a firearm counted as
part of the offender score under RCW 9.94A.525 and the individual has
completed all conditions of the sentence.
(b) An individual may petition a court of record to have his or her
right to possess a firearm restored under (a) of this subsection (4)
only at:
(i) The court of record that ordered the petitioner's prohibition
on possession of a firearm; or
(ii) The superior court in the county in which the petitioner
resides.
(5) In addition to any other penalty provided for by law, if a
person under the age of eighteen years is found by a court to have
possessed a firearm in a vehicle in violation of subsection (1) or (2)
of this section or to have committed an offense while armed with a
firearm during which offense a motor vehicle served an integral
function, the court shall notify the department of licensing within
twenty-four hours and the person's privilege to drive shall be revoked
under RCW 46.20.265.
(6) Nothing in chapter 129, Laws of 1995 shall ever be construed or
interpreted as preventing an offender from being charged and
subsequently convicted for the separate felony crimes of theft of a
firearm or possession of a stolen firearm, or both, in addition to
being charged and subsequently convicted under this section for
unlawful possession of a firearm in the first or second degree.
Notwithstanding any other law, if the offender is convicted under this
section for unlawful possession of a firearm in the first or second
degree and for the felony crimes of theft of a firearm or possession of
a stolen firearm, or both, then the offender shall serve consecutive
sentences for each of the felony crimes of conviction listed in this
subsection.
(7) Each firearm unlawfully possessed under this section shall be
a separate offense.