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Maryland Criminal Defense · Firearms

Possession of a Regulated Firearm by a Prohibited Person in Maryland: How an Old Record Becomes a New Charge

You weren't holding it. It was in a shared home, a shared car, or someone else's name. And a conviction you thought was finished has turned it into a new case against you.

By Amir Guerami, Esq. · The Guerami Law Firm, LLC

You were not holding it. Maybe it was in a drawer, a closet, a car you share, a home where other adults live. Maybe it belongs to your spouse, your roommate, or your parent. And yet the charge lands on you: _possession of a regulated firearm by a prohibited person._ The reason traces back to something you believed was long finished — a conviction from years ago, a protective order, a court finding you had almost forgotten. Now that history has reached into the present and turned a gun you never touched into a criminal case with your name on it.

The fear that brings people to my office over this charge is very particular. It is not the fear of "did I do something wrong today." It is the fear that the past is permanent — that one old mistake has quietly stripped away a right everyone else takes for granted, and that there is nothing to be done. I want to be straight with you about the stakes, because they are real. And then I want to show you why this charge is far more contestable than it first appears.

I can do that because I used to be the one bringing these cases. When I was a Maryland prosecutor, I filed and evaluated firearm charges like this one. I know exactly where the State's proof is strong and, more importantly, where it is thin.

The Law

What the statute actually says

Maryland's core rule is found in _Md. Code, Public Safety § 5-133_, titled restrictions on possession of regulated firearms. Two terms unlock the whole statute.

First, a _"regulated firearm."_ Under Maryland law this means a _handgun or an assault weapon_ (Public Safety § 5-101). It does not, by itself, cover ordinary rifles and shotguns — those long guns are addressed by a separate provision (Public Safety § 5-205) with its own list of disqualified persons. So the first question in any of these cases is simply: what kind of gun are we actually talking about?

Second, a _"prohibited person."_ Section 5-133 lists the categories of people who may not possess a regulated firearm. In plain terms, the list includes:

• People convicted of a crime of violence, a disqualifying felony, or certain disqualifying misdemeanors.
• People convicted of a controlled dangerous substance offense of the kind the statute names.
• People currently subject to a protective order.
• People found mentally incompetent, or who have been involuntarily committed.
• People who are fugitives, habitual drunkards, or addicted to a controlled substance.
• People under the age the statute sets for lawful possession.

That is a summary, not the full statutory text, and whether any one person truly falls inside a category is often the entire ballgame. The point for now is this: the prohibition is about _status_. The State is not required to prove you did anything violent or dangerous with the gun. It only has to prove that you belong to a prohibited category and that you possessed a regulated firearm.

The State does not have to prove you did anything dangerous with the gun. It only has to prove who you are and that the gun was yours to control. Both of those are questions of proof — and proof can be challenged.

The Stakes

The penalties, named honestly

A violation of § 5-133 is charged as a misdemeanor — but in Maryland, "misdemeanor" is not a synonym for "minor." A straight violation carries up to five years of incarceration.

The exposure grows sharply from there. Maryland law attaches an _enhanced, mandatory penalty_ when the prohibiting conviction was a crime of violence or one of the drug felonies the statute identifies. That enhanced penalty carries a mandatory minimum term that cannot simply be suspended away — a subject serious enough that it gets its own article on this site. For today, understand only this: the identity of your prior conviction does not just decide _whether_ you are prohibited. It can decide _how much time_ is on the table.

!A Second Front You May Not See Coming

The federal government has its own felon-in-possession law. A single firearm found in a Maryland home can, in some circumstances, draw both state and federal attention. This is one more reason not to gamble with it:

• Do not assume this is "just a state case."
• Do not talk to any investigator, state or federal, before you have a lawyer.
• Do not touch, move, or "get rid of" the gun — that can create new charges on top of the old one.

The Turning Point

The word that decides these cases: "possession"

Here is the concept that turns a surprising number of these charges into winnable ones — and the concept most defendants completely misunderstand.

You do not have to be holding a gun to "possess" it under Maryland law. Courts recognize _actual possession_ (it is on your person) and _constructive possession_ (you knew the firearm was there and had the ability and intent to control it). Constructive possession is how a gun in a nightstand, a shared closet, a glovebox, or a common living area gets pinned on a particular person.

But constructive possession is not automatic, and it is not the same thing as being nearby. To prove it, the State generally has to show more than your mere presence in a home or a car where a gun happened to be. Courts look at practical factors — how close you were to the firearm, whether it was in plain view, whether you owned or controlled the space, and whether the surrounding circumstances suggest the gun was under your dominion rather than someone else's. When several adults share a home or a vehicle, those factors frequently point in more than one direction.

Presence is not possession. Proximity is not control. And the gap between them is exactly where a defense goes to work.

The Insider Lens

What prosecutors actually look at

When I assessed one of these cases as a prosecutor, I did not begin with whether the defendant was a good person. I began with a short, unsentimental checklist — and knowing it tells you precisely where a defense must concentrate.

1. _Does the prior actually disqualify?_ Not every old conviction triggers § 5-133. Whether a specific charge from years ago — sometimes from another state, sometimes ambiguously recorded — legally counts as a disqualifying crime is a real question. And a conviction that has been expunged or pardoned, or a right that has been restored, may no longer prohibit you at all.
2. _Can we prove possession — of this gun, by this person?_ A firearm in a shared space, without prints, without DNA, without a statement tying it to the defendant, is a weaker case than the charging document suggests.
3. _Was the search lawful?_ These guns are almost always found during a search — of a home, a car, a person. If that search violated the Fourth Amendment, the gun may be suppressible.
4. _Is there anything to stack?_ Drugs in the same room, a second weapon, other charges — the presence of aggravating facts changes how hard the State pushes.

Notice what does not appear on that list: your intentions, your character, your reasons. This charge is built on _status and possession_. Both are questions of proof, and proof can be challenged.

The Traps

Common mistakes that quietly make it worse

The most damaging moments in these cases usually happen before a lawyer is ever involved.

!Do Not Explain the Gun

People believe that if they can just make the officer understand, the problem will shrink. It does the opposite. Each of these sentences can prove the two things the State most needs — that you knew the gun was there, and that you had a disqualifying past:

• "It's not mine, it's my wife's."
• "I only keep it for protection."
• "I didn't think that old case still counted."

You cannot explain your way out of this charge. You can only build the State's case for it. Say nothing, and speak to a defense lawyer first.

The second mistake is assuming the old conviction is automatically fatal. Many people surrender before they start because they believe any record makes them a prohibited person. That is not always true. Whether a particular prior triggers § 5-133 is a legal determination — and the answer is sometimes no.

The third mistake is treating the search as untouchable. Because the gun was found, people assume the search that found it was lawful. That assumption is not the law. Whether police had a warrant, valid consent, or a lawful basis to enter and search is frequently where the case is actually decided.

The Defense

What a real defense looks like

A serious defense to a § 5-133 charge does not open with an apology. It opens with harder, more useful questions.

• Test the disqualifier. Does the prior conviction genuinely disqualify you under Maryland law? Has it been expunged or pardoned? Was it recorded accurately? If the status element fails, the charge fails.
• Attack possession. Can the State connect _you_ to _this_ firearm, or only place you in the same building? In shared spaces, constructive possession is often the softest part of the State's case.
• Challenge the search. If the firearm was recovered through an unlawful stop, entry, or search, a motion to suppress can ask the court to exclude it. When the gun is the case, keeping the gun out of evidence can end the case.
• Scrutinize the enhancement. If the State is reaching for a mandatory penalty, the prior it relies on must truly qualify. That predicate deserves its own fight.

★The Leverage Points

In most prohibited-person firearm cases, the fight is not about whether a gun exists. It is about three questions the State would rather you never ask:

• Does your prior conviction actually disqualify you — or was it expunged, pardoned, or misread?
• Can the State tie _you_ to _this_ gun beyond mere presence in a shared space?
• Was the search that found the firearm lawful — and if not, can it be suppressed?

The Bottom Line

Your past has not already decided your future

None of this is a guarantee, and I will never pretend otherwise. Maryland firearm law is intricate and constantly shifting, and every case turns on its own particular facts. But the story the charging document tells — that your past has already decided your future — is _not the whole story._

The distance between an old record and a new conviction is narrower, and far more contestable, than it looks from inside a jail cell. The worst move is to decide it is hopeless. The second worst is to start talking. The right move is quieter and stronger: say nothing, and put the whole case — the prior, the possession, the search — in the hands of a defense lawyer who has stood on both sides of the courtroom.

Legal Disclaimer This article is for general educational purposes only. It is not legal advice and does not create an attorney-client relationship. Maryland law changes, and every case turns on its own facts. If you or someone you love has been charged, speak with a Maryland criminal defense attorney about your specific situation before making any decisions.

Talk To A Lawyer Who Has Sat At Both Tables

If you have been charged with a crime or a serious traffic offense in Maryland, do not plead until you have spoken to a lawyer who has stood on both sides of the courtroom.

Contact The Guerami Law Firm, LLC through NoPleaMD.com for a confidential consultation with Amir Guerami and his team.