NJ Graves Act Waiver - How To Get One
The NJ Graves Act Waiver is the best way for you to avoid prison when facing NJ gun charges. Many of our clients acquired a gun lawfully in another state & bring it to New Jersey. But simply bringing a gun into NJ is a felony.
You will be subject to arrest, prosecution, and conviction for unlawful gun possession in New Jersey.
We will explain how you can avoid conviction and incarceration in NJ.
Introduction
What Is The Graves Act In NJ?
The NJ Graves Act is a very serious law. If you are accused of violating the Graves Act, you are facing prison. Under NJ law, any crime involving a firearm will trigger “Mandatory Prison”.
Even if no one was hurt & the gun wasn’t fired or shown to anyone, simply bringing a gun to the crime can send you to prison for a long time. As criminal lawyers, we’ve represented countless out-of-state clients charged with felony gun possession in New Jersey.
Video
This video explains the Graves Act Waiver.
This is not an easy process but it is possible.
What is the purpose of the graves act?
The purpose of the Graves Act in NJ is to stop people from carrying guns. With a few exceptions, we do not have “Carrying Concealed Weapons” (CCW) permits in NJ.
In NJ, if you are convicted of using or possessing a firearm while committing a crime you will have to serve a mandatory prison sentence. However, most gun charges in NJ involve lawful gun owners from another state who could lawfully carry that gun in that visitor’s home jurisdiction.
What exactly is a graves act offense?
It is an offense involving illegal possession of a firearm.
To list a few:
· Unlawful Possession of a Machine Gun, Handgun, Rifle or Shotgun (in violation of N.J.S.A. 2C:39-5(a), (b) or (c).
· Possession of a Sawed-Off Shotgun in violation of N.J.S.A. 2C:39-3(b).
· Possession of a Defaced Firearm in violation of N.J.S.A. 2C:39-3(d).
· Possession of a Firearm While in the Course of Committing a Drug Distribution or Possession With Intent to Distribute Offense, in violation of N.J.S.A. 2C:39-4.1(a).
· Possession of Certain Weapons by Persons Previously Convicted of Specified Offenses, in violation of N.J.S.A. 2C:39-7(a) or (b)(2).v · Manufacture, Transport, or Disposition of a Machine Gun, Sawed-Off Shotgun, or Assault Firearm, in violation of N.J.S.A. 2C:39-9(a), (b), or (g).
· Defacement of a Firearm, in violation of N.J.S.A. 2C:39-9(e).
If you need help understanding any of the statutes, call us now for a free consultation.
But my gun wasn't used in a crime
Simply being in “unlawful possession” of a firearm will trigger the Graves Act in NJ.
This means that if you do not have a gun permit & are found to have a gun in your pocket, the Graves Act will apply to your case.
Since we don’t have CCWs in NJ, merely having a gun on your person is illegal.
In New Jersey is illegal to:
1) Have the gun in certain places;
2) During certain times; and
3) Transported in a specific way.
In addition to felony gun possession charges, you will also face aggravated assault charges if you point your gun at another person.
But I Was Just Passing Through New Jersey
Out-of-state residents driving through New Jersey get arrested every day. If you cross any bridge or tunnel into NJ with a gun, you will be charged with a felony. The police find these guns after searching the vehicle for marijuana. One way we challenge NJ gun possession cases is to challenge law enforcement’s search of your vehicle. We cover this topic extensively in: Dismissing Criminal Charges.
What are the NJ penalties for a gun charge?
Graves Act violations start out as second-degree felony offenses.
Second-degree felonies carry 5-10 year prison sentences subject to the No Early Release Act (NERA).
You must serve a mandatory minimum sentence of 42 months under the Graves Act.
For example, one of our Jersey City clients was sentenced to 5 years. Had he been charged with a different felony, he would’ve had to serve2.5 years (30 months). But since his charges involved a gun, he had to serve at least 42 months because that is the minimum sentence that a judge must impose. See more below.
Felony Degree
Prison & Fines
Examples
First-Degree
1st-degree felony charges in NJ are reserved for the most serious criminal offenses. Prison terms start at 10 years.
- Murder
- Aggravated Sex Assault
- Manslaughter
- Drug Distribution
Second-Degree
2nd-degree felony charges carry 5-10 yrs in prison. These charges can often be “downgraded” to 3rd or 4th-degree crimes.
- Vehicular Homicide
- Aggravated Assault
- Robbery
- Endangering Welfare of a Child
Third-Degree
3rd-degree felony charges carry 3-5 years.
You have a good shot at PTI if you are charged with a 3rd-degree.
- Drug Possession
- Terroristic Threats
- Unlawful Weapon Possession
Fourth-Degree
4th-degree felony charges carry up to 18 months in jail. These cases can get “downgraded” to a Municipal court. In this way, you will be out of “felony” danger.
- Drug Possession
- Lewdness
- Criminal Sexual Contact
- Criminal Mischief
Is there a way to avoid the graves act in NJ?
Let’s start with the easiest way to avoid the Graves Act & thus avoid prison.
In 2014, New Jersey’s Attorney General issued the following memo:
Out-of-State Visitors From States Where Their Gun-Possession Conduct Would Have Been Lawful.
We’ll simplify this for you.
The memo basically states that the Graves Act won’t apply to you if you are a lawful gun owner from another state who is allowed to carry your gun in your home state.
The memo goes on to explain that Prosecutors are not permitted to reject your application for PTI because you were charged with a crime with a mandatory minimum sentence. (Source State v. Caliguiri, 158 NJ 28 (1999).
To learn more about PTI, read:
PTI: Everything You Need To Know In Five Minutes!
What are Mitigating & Aggravating factors?
In determining whether you will be approved for a Graves Act waiver the court will consider mitigating and aggravating factors.
These factors are outlined in N.J.S.A 2C-44:1.
Mitigating Factors
- – You did not cause or threaten serious harm
- – You did not contemplate that his conduct would cause or threaten serious harm
- – You acted under strong provocation
- – There were substantial grounds to excuse or justify your conduct while failing to establish an actual legal defense
- – You have compensated or will compensate the victim or will participate in a program or community service
- – You have no prior criminal history
- – Your conduct was the result of circumstances unlikely to reoccur
- – Your character and attitude indicate that he is unlikely to commit another offense
- – You will respond well to probation
- – Your imprisonment would entail an excessive hardship to himself or dependents
- – Your willingness to cooperate with law enforcement or authorities
- – Your conduct was substantially influenced by a person more mature than you
Aggravating Factors: (Bad for you)
- – The nature and circumstances of the offense
- – The gravity and seriousness of the harm inflicted on the victim
- – Risk that you will commit another crime
- – A lesser sentence will depreciate the seriousness of the defendant’s offense because it involved the breach of public trust
- – The likelihood that you are involved in organized crime
- – The extent of your prior criminal history
- – You committed the crime pursuant to some agreement for money or other incentives
- – You committed the crime against law enforcement
- – The need to deter you and others from violating the law
- – The crime involved fraud or deception
- – You committed the crime against a person who you knew or should have known was over the age of 60
- – The act involved domestic violence
What If I can't get a graves act waiver?
If the NJ County Prosecutor’s office will not consent to Pre-Trial Intervention (PTI) or probation following a Graves Act Waiver Application, you can always take you case to trial.
If you take your case to trial, the State must prove beyond a reasonable doubt that you had gun in your possession for an unlawful purpose.
The jury must convict you of two things:
(1) Unlawful Possession
(2) FOR an unlawful purpose.
An unlawful purpose means that you had the gun on your person while you were trying to commit a crime.
Typical examples include robbery or theft cases.
If you have gun possession charges just because the gun was in your car or near you, you have better chances at trial.
When all else fails, you may consider a trial.
Final Thoughts
If you have gun charges in New Jersey, you need a criminal defense attorney. As discussed, there are many factors to consider in getting a Graves Act waiver.It is important to find a lawyer who understands how to navigate the criminal system.
Since it’s such an important decision, take the time to find the right criminal lawyer who can help you. Once you’ve found a few lawyers you’d like to meet, check to see if they have any client reviews. At our firm, before a client hires us, we always encourage them to visit our Client Reviews.
Take advantage of free consultations and see how that lawyer makes you feel. When you trust your gut, you never go wrong. Choosing the criminal defense attorney that is right for you is an important decision. So take your time and choose wisely.
