There are both Federal and State laws that regulate the possession of destructive devices in the United States. The federal government first addressed destructive devices in the National Firearms Act of 1934. Current federal law allows for the possession of destructive devices; however, these instruments must be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives. The sale and purchase of destructive devices are also heavily taxed and regulated. Although destructive devices are legal on a national level, New Jersey law strictly prohibits the possession of destructive devices. As a result, possessing a destructive device in New Jersey may result in criminal weapons charges and severe penalties.
If you are charged with illegal possession of a destructive device, it is essential to begin constructing an aggressive defense strategy as soon as possible. At The Tormey Law Firm, our New Jersey weapons attorneys represent clients charged with criminal weapons offenses ranging from unlawful possession of a weapon to possession of a weapon for an unlawful purpose. Our firm’s founder, Travis J. Tormey, was recently named among the the Ten Best Criminal Lawyers in New Jersey by the American Jurist Institute. He leads a team of former weapons prosecutors, former members of the U.S. Attorney’s Office, and a former member of the Morris County Prosecutor’s Office’s Weapons Forfeiture Unit. This formidable team successfully represents clients across New Jersey, including in courts in Camden, Trenton, Freehold, and Mays Landing. To discuss your current situation with one of our highly knowledgeable New Jersey weapons lawyers today, contact our offices at (201)-614-2474 for your free initial consultation.
Laws on Destructive Devices in New Jersey
Definition of a Destructive Device
According to section N.J.S.A. 2C:39-1, which provides definitions of key terms used in New Jersey weapons laws, “destructive device” can refer to any device, instrument or object designed to explode or produce uncontrolled combustion, including:
- Any explosive or incendiary bomb, mine or grenade;
- Any rocket having a propellant charge of more than four ounces or any missile having an explosive or incendiary charge of more than one-quarter of an ounce;
- Any weapon capable of firing a projectile of a caliber greater than 60 caliber, except a shotgun or shotgun ammunition generally recognized as suitable for sporting purposes;
- Any Molotov cocktail or other device consisting of a breakable container containing flammable liquid and having a wick or similar device capable of being ignited.
NOTE: The term “destructive device” does not include any device manufactured for the purpose of illumination, distress signaling, line-throwing, safety or similar purposes.
Possession of a Destructive Device Offense: Third Degree Crime
In New Jersey, it is unlawful to possess any of the items that meet the criteria of a destructive device. Possession of a destructive device is considered a violation of N.J.S.A. 2C:39-3(a), which outlines a variety of Prohibited Weapons and Devices. In order to convict an individual of possession of a destructive device in New Jersey, there are two elements that the prosecution must prove:
(1) The item the individual possessed was a destructive device;
(2) The individual knowingly possessed the destructive device.
Meaning and Importance of “Knowingly” Possessing
The law states that the defendant must “knowingly” possess the destructive device. Because knowledge is not something that can be seen, but is instead a condition of the mind, the law has defined knowing as: “A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause such a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.”
Types of Possession that Qualify
Possession is often thought of as having something physically in a person’s possession, such as being held in their hand or otherwise on their person. However, there are several distinct types of possession: actual, constructive, joint, and sole. Actual possession is when the individual has the destructive device physically on their person. They know it is a destructive device and are carrying it on their physical body. As a result, they also have direct physical control over the device.
Constructive possession is when the person is aware of the destructive device’s presence but it is not physically on their body. In this instance, they are aware it is a destructive device and know where it is. The device might be in their car or home, or it may be stored somewhere else where they are able to access it. Constructive possession also means that the individual knows how to control the device and intends to control the device, either themselves or through another person.
Both actual and constructive possession qualify as possession under the law and can be used to convict an individual. Additionally, possession can be either sole (the individual alone has actual or constructive possession) or joint (two or more individuals knowingly share actual or constructive possession and knowingly share control over the device).
Fleeting possession does not qualify as possession under the law and cannot be used to convict an individual. Fleeting possession means that the individual did not knowingly procure or receive the destructive device and was not aware of their control over the device for a sufficient period to be able to relinquish control if they chose to. An example of fleeting possession might be if an individual borrowed a sibling’s car for two hours and the sibling had a destructive device in the trunk. The individual who borrowed the car is either unaware of the destructive device in the car, is aware of the device but not what the device is or what it can do, or does not know how to control the device.
Penalties for NJSA 2C:39-3a Charges
A violation of New Jersey Statute Section 2c:39-3(a) for possession of a destructive device is classified as a third degree crime. As such, a conviction may result in a sentence to serve between 3 and 5 years in New Jersey State Prison, as well as a fine of up to $15,000.
Exceptions for Legal Possession of Destructive Devices in NJ
While most people cannot legally be in possession of a destructive device, there are some exceptions. These exceptions are extremely limited but they are valid defenses in these cases. The exceptions are being a member of the Armed Forces, being a law enforcement officer in specific circumstances, or when the destructive device is an antique cannon.
Members of the Armed Forces
Any member of the United States Armed Forces and the National Guard may possess a destructive device while on duty or while traveling to or from their authorized place of duty as long as that possession has been authorized under the applicable laws, regulations or military orders.
Law Enforcement Officers Under Specific Circumstances
Law enforcement officers may also possess such devices while on duty or while traveling to or from their authorized place of duty if the possession is authorized under the applicable laws, regulations, or law enforcement orders. Additionally, law enforcement officers may be in possession of such devices if they have confiscated, seized or otherwise taken possession of the device from an individual they believed was in illegal possession of the device or as evidence of a crime that was committed. If the law enforcement officer is in possession of a destructive device as a result of confiscating it as evidence or from someone who illegally possessed it, they must notify their superiors of their possession of the device promptly after taking possession.
Antique Cannons
If an individual is eligible to own an antique cannon, they may be in possession of it to transport the unloaded cannon between its permanent location and a repair location, in compliance with regulations set by the superintendent of the State Police. They may also load and fire such cannons for purposes of exhibition or demonstration at an authorized target range with permission in writing from the chief law enforcement officer of the municipality where the target range is located or the State Police superintendent if the target range is not under control of a municipality with a minimum of 30 days notice. Transportation to and from the exhibition or demonstration site is also a legal defense.
Requirement to Notify Police of a Destructive Device
Section N.J.S.A. 2C:58-7 of the New Jersey statutes requires any individual who comes into possession of a destructive device that may be or is loaded or is dangerous for other reasons, to notify either the municipal police authorities of the city they live in or the State Police within 15 days of coming into possession of the device, unless they possess the device for lawful commercial or other purposes.
Can You Get Pretrial Intervention for a Destructive Device Possession Charge?
Pre-Trial Intervention (PTI) is a diversionary program designed to help defendants avoid a conviction and as such, the program is only open to people who have no previous convictions and those who have never used a diversionary program before. The guidelines state that applications for defendants charged with an offense that was deliberately committed with violence or the threat of violence against another person should generally be rejected. Additionally, the guidelines also indicate that those charged with first and second-degree offenses should not be accepted unless there is a joint application by both the defendant and the prosecutor. This means that PTI may be a possibility, but defendants needs to get the prosecutor to agree allow them to apply if they have a chance of being approved.
If approved, PTI can help defendants avoid a conviction on their criminal record, which means they will have an easier time finding employment and housing in the future. During PTI, the conditions are very similar to being on probation. The individual will meet regularly and be visited periodically by their probation officer. The individual must also remain consistently employed, report their new address to their probation officer if they move, pay certain fees that are agreed to when they are approved for the program, and avoid any additional arrests. They also must seek permission before they can move out of state.
Other Alternatives to Prison Time
If convicted, a defendant may face several years in prison. However, in some circumstances, they may be sentenced to probation instead. They may also need to pay restitution to any victims and have a suspended license.
Destructive Devices for Unlawful Purposes: Second Degree Crime
The charge for possessing a destructive device for an unlawful purpose depends on the intent. If the individual intended to use the device against another person or property, the charge is second degree possession of a destructive device for an unlawful purpose. Being in possession of a destructive device without an intention to use it against another person or property is third degree possession of a destructive device.
If a defendant is convicted of possession of a destructive device for an unlawful purpose, they face fines of up to $150,000 and 5 to 10 years in prison. If convicted under the Graves Act, the individual will be required to serve 85% of their sentence before being eligible for parole.
Contact our Camden County Weapons Defense Attorneys for a Free Consultation
The penalties for possessing a destructive device can be quite severe. The restrictions under which an individual is legally allowed to possess a destructive device are so limited that it can be extremely difficult to defend against the charges without experience and intricate knowledge of the law. The attorneys at The Tormey Law Firm understand the complexities of these laws and the severe negative impact a conviction could have on your life. Hiring our weapons defense lawyers can help you build a stronger defense to obtain a dismissal, reduce the charges or severity of the penalties, or prepare a compelling package for the prosecutor to help you gain acceptance into the PTI program. If you have questions regarding destructive devices in New Jersey or you are facing criminal charges related to the possession of a destructive device, contact our New Jersey weapons attorneys today at (201)-614-2474 for a cost-free consultation. We are available 24/7 to discuss your case and your legal options.