Many weapons cases start with a traffic stop or a search that police may not have had the right to make. J. Ryan Brown Law reviews body camera footage, search records, and your background to find weak spots in the State’s case. Call today so we can start protecting your record and your right to own a firearm.
A traffic stop on Highway 27 outside Cedartown. Three people in the cab. A firearm under the seat or in the console. Everyone says it is not theirs, and the officer arrests the person with the prior record.
That scenario plays out constantly in Polk County, and it produces charges that depend entirely on a legal concept most people have never heard of. Whether the state can actually prove you possessed that weapon is usually where these cases are decided.
At J. Ryan Brown Law, we defend weapons charges in Cedartown and throughout Polk County.
This is the charge that reaches the most people in Polk County, and it is broader than its name suggests.
Under O.C.G.A. § 16-11-131, it is a felony for anyone previously convicted of a felony, in Georgia or any other jurisdiction, to receive, possess, or transport a firearm. The same prohibition applies to people on probation as felony first offenders.
The statute also reaches attempts. Under § 16-11-131(b.1), a person prohibited because of a forcible felony who attempts to purchase or obtain transfer of a firearm faces one to five years, and five to ten on a second conviction.
Georgia recognizes two kinds of possession, and the difference matters enormously in Polk County cases.
Actual possession means the firearm was on your person.
Constructive possession means you had the power and intention to exercise control over it, even without touching it.
Three principles follow, and each one creates room for the defense:
Ownership is irrelevant. The statute prohibits possession, not ownership. A weapon belonging to a spouse, a parent, or a roommate can still support the charge.
Presence is not possession. Being near a firearm does not establish possession. The state has to show something connecting you to control over the weapon.
Equal access cuts against the state. When several people had equal access to the place where a firearm was found, a shared vehicle, a common room, a residence with multiple occupants, proving that any one person possessed it becomes substantially harder.
Many of these cases involve vehicles shared among family members and friends and shared households. In these situations, it can be difficult for the State to prove possession.
If convicted under this code section, it adds an automatic five years to a sentence.
Under O.C.G.A. § 16-11-106, having a firearm, or a knife with a blade three inches or longer, on your person or within arm’s reach during the commission of or attempt to commit certain felonies carries five years, served consecutively to the sentence for the underlying offense.
Consecutive means stacked, not concurrent. A second or subsequent conviction carries ten years, and the statute provides that such a sentence cannot be suspended or replaced with probation. The punishment is also not reducible to misdemeanor treatment.
The practical effect is leverage. A drug case that might have been resolved with probation becomes a case carrying closer to ten years or a mandatory prison sentence because a firearm was within reach. Prosecutors add this count knowing exactly what it does to plea negotiations.
Because the count depends on the underlying felony, attacking that base charge is often the most effective route to defeating the firearm enhancement. If the underlying felony is dismissed or reduced to a misdemeanor, the § 16-11-106 count falls with it.
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Most Polk County firearm charges originate from a vehicle stop. That makes the legality of the stop and any search the first thing to examine.
An officer needs reasonable suspicion for the stop itself, and continuing to detain someone after the original purpose is resolved requires new justification. If a search followed, the questions are whether there was probable cause, whether consent was genuinely voluntary, and whether the search stayed within its lawful scope. No one should ever consent to a search and require law enforcement to have a warrant or probable cause.
If charged with possessing a firearm while a convicted felon, we should always check whether the suspect had their firearm rights restored. Under § 16-11-131(c), the prohibition does not apply to a person who has been pardoned in a way that expressly authorizes receipt, possession, or transport of a firearm. Georgia’s State Board of Pardons and Paroles handles these applications, and firearm rights restoration is a separate process from restoration of civil and political rights. Details are available through the State Board of Pardons and Paroles.
If a client’s rights were restored, then we have a viable defense against a firearm by a convicted felon charge.
Cedartown is the county seat of Polk County, part of the Tallapoosa Judicial Circuit shared with Haralson County. Felony weapons charges are heard in Polk County Superior Court on Prior Street.
We represent clients throughout Cedartown, Rockmart, Aragon, and the rest of Polk County.
These cases frequently rest on an assumption that the person arrested was the person who possessed the weapon. That assumption is testable, and testing it early is worth far more than raising it late.
J. Ryan Brown Law defends weapons charges in Cedartown and across Polk County. We examine the stop, the search, and the possession question the state actually has to prove.
Contact us today. We answer 24/7.
