Can the Police Take My Weapons?
Charged with an Act of Domestic Violence? Weapons Seized?
Anyone arrested and charged with a crime that is classified as an act of domestic violence may, and more likely than not, will have their firearms seized as well. This is assuming that a temporary restraining order (TRO) is not issued. If a TRO is issued in addition to the criminal charges, it is mandatory that all weapons must be seized. It is important to remember that the authority which law enforcement possess to seize all weapons pursuant to a Defendant being charged with a criminal offense that is classified as an act of domestic violence is different than their authority to seize all weapons pursuant to the issuance of a TRO. One is mandatory and the other is discretionary.
If you or a loved one has been charged with a criminal offense that is classified as domestic violence and your weapons are seized, we strongly urge that you contact an attorney as soon as possible. Understanding your rights and options is absolutely crucial when it comes to defending a domestic violence incident. If you would like to speak to one of the domestic violence defense attorneys at Proetta & Oliver today, please contact our Bridgewater office at 908.533.1064. Domestic violence cases are very complex and typically involve a lot of moving pieces, including detention hearings, restraining orders and weapons seizures. We serve all of Somerset and Hunterdon County, including towns like Clinton, Readington, Raritan, Somerville, Flemington, Hillsborough, Franklin, Watchung and Union. As always our initial consultations are free of costs, so if you have any questions, please do not hesitate to contact us.
Who Could be Considered a Victim of Domestic Violence?
In order to fully understand when the police have the authority to seize weapons pursuant to an arrest for domestic violence, it is first important to discuss who could could be classified as a victim of domestic violence. Pursuant to NJSA 2C:25-19d, a victim will obtain additional protections under New Jersey’s Domestic Violence Prevention Act if they fall under anyone of the following categories:
- They are 18 years of age or older or they are an emancipated minor and they have been the victim of an act of domestic violence by a spouse, former spouse, or any other person who is a present or former member; or
- Regardless of their age, they are the victim of an act of domestic violence by a person who they have a child in common with, or with who the victim anticipates having a child in common; or
- They are the victim of an act of domestic violence at the hands of someone they have had a dating relationship.
It is important to note here that not all criminal offenses fall under acts of domestic violence. The legislature has chosen fourteen enumerated offenses that will be classified as acts of domestic violence if the victim qualifies for protection under the New Jersey Domestic Violence Prevention Act. Pursuant to NJSA 2C:25-19a, anyone of the following crimes will be considered an act of domestic violence:
Do the Police Have the Right to Seize My Weapons?
If a Defendant is charged with a criminal offense that is classified as an act of domestic violence due to their relationship with the alleged vicim, the police have the authority seize any and all weapons pursuant to NJSA 2C:25-21-d. It is important to note here that the seizure of the weapons is not mandatory but more often than not does occur. Pursuant to NJSA 2C:25-21-d, if the police have probable cause to believe that the Defendant committed an act of domestic violence, they must question everyone present to determine whether there are any weapons located on the premises. If they conclude that a weapon is present, they have the authority to seize any weapons which they reasonably believe would expose the victim to a risk of serious bodily injury. This does not just include any and all weapons but the Defendant’s firearms id card as well.
If the Police Seize My Weapons, Can I get them Back?
Just because the police seize a Defendant’s weapon it does not necessarily mean that the weapons will be forfeited. Once the weapons are seized, the prosecution has forty-five (45) to file a formal forfeiture motion with the court. Once the forfeiture motion is filed, the court will set a date for a formal hearing. During this hearing it will be up to the Judge to determine whether the weapons should forfeited or returned to the Defendant.
The weapons and accompanying firearms id card shall be returned if after the hearing the Judge determines that:
- That the Defendant is not subject to any of the disabilities set forth in N.J.S.2C:58-3c; &
- That the Domestic Violence Complaint was either dismissed at the request of the complainant (victim); or
- That the prosecutor concludes that there is insufficient probable cause to indict; or
- If the Defendant is found not guilty of the charges; or
- If the Judge determines that the domestic violence situation no longer exists,
If the Judge concludes that the prosecution has satisfied their burden and that the weapons will be forfeited, the Defendant will 60 days if they choose to transfer and/or sell the weapons.
Need Lawyer for Weapons Forfeiture Hearing in Somerset County
If you or a loved one has been charged with an act of domestic violence and as a result have had their weapons seized, we strongly urge that you contact an experienced criminal defense attorney as soon as possible. Understanding your options and possible defenses is absolutely crucial when it comes to a weapons forfeiture hearing in New Jersey. If you have unfortunately found yourself in this type of situation and would like to speak to one of our attorney today about your options, please contact our Bridgewater office at 908.533.1064 or you can try contacting us online. We serve all of Somerset and Hunterdon County, including Plainfield, Bedminster, Bernards, Somerville, Manville, Bound Brook, Green Brook, West Amwell and Readington.
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