The Graves Act & Graves Act Waivers

Graves Act Defense Attorneys in Middlesex County, NJ

More and more states across the country are enforcing harsh laws that place significant restrictions on gun rights, as well as imposing severe penalties against anyone convicted of a gun-related crime. One state with particularly punitive gun laws is New Jersey, where the Graves Act limits the ability of prosecutors to negotiate reduced charges and requires judges to impose lengthy prison sentences for defendants in gun possession cases. For anyone who has been charged with a firearms crime, having a qualified criminal defense lawyer will be critical to understanding the Graves Act and Graves Act Waivers. Depending on the exact circumstances of your case, it may be possible for an attorney to help you secure a Graves Act Waiver so that you are able to avoid the mandatory statutory penalties and stay out of prison.

Our skilled team of criminal defense attorneys has helped a multitude of clients avoid mandatory minimum sentencing for Graves Act weapons charges, involving handguns and other firearms throughout Middlesex County and New Jersey. When you are up against a wall after being arrested for a gun in New Brunswick, Edison, South Brunswick, Piscataway, East Brunswick, Carteret, or another community, we can help fight to keep you out of jail. From bail hearings to Graves Act Waivers for probation or Pre-Trial Intervention, our lawyers have the knowledge and dedication to successfully defend your case. Contact our local office in Edison, NJ at (732) 659-9600 for a free consultation about your gun charges and talk through your possible options.

What is the Graves Act?

The Graves Act, which is codified in N.J.S.A. 2C:43-6, was initially passed by the New Jersey Legislature to impose mandatory prison sentences in certain cases where the defendant used a firearm. In 2008, state lawmakers took things a step further by amending the Graves Act to cover a much wider range of crimes, including many offenses that simply involved the possession of a firearm. As a result, just about anyone who is caught illegally carrying a handgun, shotgun, or rifle in New Jersey could potentially be at risk of a mandatory, and lengthy, prison sentence.

Which Weapons Charges are Included in the Graves Act?

The Graves Act applies in two general situations: (1) when an individual commits a violent crime while possessing a gun, or (2) when an individual unlawfully possesses a gun. Basically, the Graves Act covers any gun-related offense – including murder, aggravated assaultkidnapping, aggravated sexual assault, robbery, and burglary – when the offense was committed while using a firearm. It is important to understand that it won’t matter whether the gun was fired or even loaded with ammunition; the mere presence of a firearm during the commission of a violent crime could be enough to trigger Graves Act penalties.

The specific gun charges that are covered by the Graves Act include the following:

What Are the Consequences of Graves Act Offenses?

All felony charges in New Jersey come with a sentencing range that serves as a guide for the judge when imposing penalties. For instance, a second degree charge typically carries a sentencing range of 5-10 years in prison, while a third degree charge usually has a sentencing range of 3-5 years in prison. But in many cases, the judge has some latitude when deciding whether to sentence the offender to actual prison time. There may be alternative sentencing options, such as Pre-Trial Intervention (PTI) or probation, that allow the defendant to stay out of jail or prison even after a guilty plea. The problem for defendants in Graves Act cases is that the penalties are presumed automatically, which means that the judge must sentence the offender to prison time, unless they obtain a specific exception from the court.

Clearly, the consequences of a conviction or guilty plea in a Graves Act case are extreme and unforgiving. If you are convicted of a weapons related crime that is covered by the Graves Act, the typical path after conviction means the court will sentence you to a minimum mandatory term of incarceration in state prison: at least 42 months for a first, second, or third degree offense, and at least 18 months for a fourth degree offense. During that time, you will also be ineligible for early release on parole.

Securing a Graves Act Waiver in Middlesex County NJ

The Graves Act limits the ability of prosecutors to offer plea bargains to defendants in gun cases. Beyond that, the minimum sentencing guidelines of the Graves Act also place significant restrictions on issuing sentence after a conviction or guilty plea. The good news for a defendant charged with a gun crime included in the Graves Act is that some defendants are able to successfully apply for a Graves Act Waiver. This waiver allows the defendant to avoid any mandatory minimum penalties and possibly stay out of prison despite a guilty plea. Without a waiver, the defendant will be ineligible for Pre-Trial Intervention (PTI) or probation because the Graves Act does not allow for any kind of probationary sentence.

The New Jersey criminal justice system is complicated enough, and things can get particularly difficult when a defendant is attempting to secure a Graves Act Waiver in a gun case. Technically, the Graves Act Waiver is filed by the prosecutor, and the court must then approve the waiver. Before the prosecutor will agree to file a waiver on behalf of the defendant in a gun crime case, and before the judge will approve the waiver application, they will both consider a number of factors, including whether the defendant has a prior criminal record, whether anyone else was put in danger by the firearm, and the degree of the charges against the defendant. The best way to maximize your chances of receiving a Graves Act Waiver is to have an experienced guns and weapons defense attorney representing you.

What Happens to Out-of-State Residents Facing Graves Act Firearms Charges?

It is extremely common for illegal firearm possession charges to be filed against out-of-state residents who are driving through New Jersey with a handgun or rifle for which they have a valid license in their home state. The problem for these individuals is that NJ law does not recognize the right to possess or carry these weapons within state borders unless the motorist has a firearms ID card issued by New Jersey. The bottom line is that if you are a resident of another state and police discover a gun in your glove compartment or trunk during a traffic stop, it is very likely that you will be arrested and charged with a serious felony for a handgun or other firearm.

The law does not differentiate between a person with a lawful firearm permit from another state and a person with no firearm permit at all. On the other hand, NJ lawmakers have recognized the inherent unfairness of punishing people who probably did not realize that they were violating the law in the first place. That’s why the state has given prosecutors some flexibility to allow for alternative sentencing options when someone from another state with no prior criminal history who is charged with unlawful possession of a firearm. The three main requirements are:

  • That the defendant legally acquired the gun in another state.
  • That the defendant was legally allowed to possess or carry the gun in their home state.
  • That the defendant believed they were lawfully possessing the weapon while traveling in New Jersey.

If the defendant meets these requirements, the prosecutor may grant the defendant entry into the Pre-Trial Intervention program so that they can receive a probationary sentence. Depending on the circumstances of the case, another option might be for the prosecutor to approve a Graves Act Waiver so that the defendant is not subject to a mandatory minimum term of incarceration.

Charged with a Graves Act Gun Offense in Middlesex County, Now What?

If you have been arrested for a weapon and are facing mandatory prison time for a Graves Act offense, contact the seasoned Middlesex County firearms lawyers at William Proetta Criminal Law for immediate assistance. We are available anytime to answers your questions and discuss your gun charges and potential eligibility for probation or PTI. Our firm defends clients charged with all types of firearms offenses and we are very familiar with the process of securing a Graves Act Waiver. Call (732) 659-9600 to learn more.

With more than a decade of experience defending clients against criminal charges, founding partner William A. Proetta has successfully handled and tried thousands of cases, from DWI to murder. As a New Jersey native, he has focused his career on helping people in the area where he grew up, serving Middlesex, Ocean, Hudson, and Union counties.