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Presence of Another
When charged with brandishing a weapon, the prosecutor must prove the facts of the alleged crime. First, it has to be proved that the weapon was drawn in the presence of another person. This might be the easiest part of the crime to prove since it only requires one other person in the accused’s presence. The other person didn’t even have to see the weapon. It’s not required to prove that it was pointed at an alleged victim either.
Rude or Threatening Manner
The accused can be convicted if this second part of the penal code is violated. A rude, threatening or angry manner doesn’t mean that the accused intended to harm the victim. If the weapon is brandished angrily, that’s enough to satisfy this second part of the penal code.
A Deadly Weapon and Firearms
The weapon must be considered deadly to be brandished in public and cause a person to be accused of a crime. Any object that is dangerous, or could be dangerous, when used to cause death or serious injury is considered a deadly weapon. These objects do not include body parts, but could include innocent objects that are used in a deadly manner. A pillow could be used as a deadly weapon to suffocate a person.
A firearm, generally referred to as a gun, would include pistols, rifles, shotguns and revolvers. This is pretty common knowledge, but pellet guns and BB guns are not included in this definition according to the penal code.
The code specifically says that you can be charged with the crime if you were not acting in self-defense, which means that it’s a natural defense included in the wording of the penal code itself. This includes if you were defending another person against a threat. The accused has to have believed that there was immediate danger or harm.
Displaying the Weapon
Brandishing a weapon does not include drawing the weapon to show someone else without the anger or threatening part of the code. If the accused was showing the weapon to a friend, it’s not considered a crime.
The nature of brandishing means that there’s some interpretation from the witnesses involved. The accused might not have caused any harm with the weapon. Showing the weapon is enough to scare others without there being any anger or threats involved. A person could make a false allegation against an innocent person out of revenge or jealousy too.
The penalties for brandishing a deadly weapon or firearm depend on the prosecutor, the details of the case as well as the accused’s criminal history. The accused could be charged with a misdemeanor or a felony depending on a few factors.
If convicted of a misdemeanor for brandishing a deadly weapon, the sentence is a minimum of 30 days in the county jail. Being convicted of brandishing a firearm can give the accused a 3 to 6 month sentence in the county jail.
Brandishing a weapon at an open day-care center or drawing a weapon on a police office can lead to the same punishment. A misdemeanor charge with a sentence of 3 months to one year in jail, or it could lead to a felony, which would mean 16 months to 3 years in a state prison.
Our law firm has years of experience with these types of charges, and we know how to defend against them. Proving that the accused wasn’t anger or threatening is the hardest part of these cases, and we can provide a solid defense on your behalf.