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  • Can I Own a Gun If My Spouse Is a Felon?

    Posted on by JACK MKHITARIAN

    Convicted felons are prohibited by federal and state law from shipping, transporting, receiving, or possessing a firearm or ammunition, although New Mexico law provides certain exceptions. That means a felon’s spouse cannot knowingly possess a gun in an area they share with the felon. 

    Keeping a weapon in the home you share with your spouse with a felony conviction can land them in serious trouble. Our team prepared this guide to answer questions about whether you can own a firearm, felon or not. Our team stays up to date on federal and New Mexico gun laws to answer any questions we receive on this topic. 

    Gun ownership spouse felon

    Can the Spouse of a Felon Have a Gun?

    Federal law prohibits felons with a felony conviction from shipping, transporting, receiving, or possessing a firearm or ammunition. New Mexico law offers exceptions allowing felons to possess firearms in limited circumstances. This offense is often referred to as possession of a weapon by a previous offender, or POWPO.

     In New Mexico, a felon is not prohibited from possessing a firearm if:

    • They were pardoned;
    • The court issued a deferred judgment; or
    • Ten years elapsed since the completion of your sentence or probation.

    Individuals with domestic violence and stalking convictions never regain their right to own a firearm in New Mexico.

    Many people think they do not possess a firearm as long as it is not on their body. However, a person has constructive possession of a firearm if they know the location of the weapon and have the ability to control it.

    For example, consider that a convicted felon marries his wife one year after he gets out of prison. The wife owns a handgun that she keeps in her bedside table in the home she shares with her new husband, and her husband knows about the firearm. In this case, the prosecutor may charge the convicted felon with possession of a firearm, even though the gun technically belonged to his wife.

    Can I Own a Gun If I Live With a Felon?

    Whether a roommate’s possession of a firearm constitutes constructive possession depends on the living situation. As stated above, a person needs to know the location of the weapon and have the ability to control it to establish constructive possession. Roommates who reside in separate bedrooms equipped with a locking door do not have the ability to control each other’s property. Although the prosecutor may still charge the convicted felon with possession of a firearm, the accused can present evidence that they lacked any ability to control the weapon as a defense to the charges.

    Alternatively, someone with a prior felony cannot share a residence with an individual who gives them easy access to a firearm. For example, if a roommate keeps their handgun sitting next to the front door, unsecured, they may risk charges for their roommate if he or she is a convicted felon.

    To prevent uncertainty, convicted felons should refrain from living with anyone they know possesses a firearm. 

    Penalties for a Felon Possessing a Weapon in New Mexico

    A “serious violent felon” in possession of a firearm is considered a third-degree felony, punishable by up to six years in prison. A serious violent felon is someone who:

    • Has not been pardoned for their felony offense;
    • Did completed their prison sentence or a period of probation more than ten years ago; and
    • Has not received a deferred sentence for the felony conviction. 

    A serious violent felon cannot share a residence where they know the location of a firearm and can access and control the firearm.

    The general penalty for the federal offense of possession of a weapon by a felon is up to ten years in prison, up to three years of supervised release, and a fine of up to $250,000.

    Can I Own a Gun If My Spouse Is a Felon? Contact a Member of Our Team to Find Out

    Owning a firearm when your spouse has a felony conviction is a slippery slope. No one wants their spouse to face further felony charges due to a simple oversight like keeping a firearm in the house.

    Facing POWPO charges is a serious matter, so hiring an attorney who can guide you through the process is invaluable to your case. Our team at the New Mexico Criminal Law Offices has focused on defending the accused against criminal charges since 1997.

    We have represented clients facing a wide variety of weapons possession charges at the federal and state level. Our courtroom experience sets us apart from other firms. We provide each client with individual attention and are committed to securing positive results for our clients.

    Frequently Asked Questions

    Below are some questions about felons in possession of firearms in New Mexico.

    Can a Felon Own a Gun in New Mexico?

    New Mexico law says it is unlawful for the following persons to receive, transport, or possess a firearm:

    • Felons,
    • Persons subject to orders of protection pursuant to a finding of domestic abuse; and
    • Individuals convicted of battery against a household member, property damage of a household member, or stalking.

    A felon under this statute means a person convicted of a felony offense by any court in the United States, and:

    • Less than ten years have passed since the completion of their sentence or period of probation, whichever is later;
    • The person has not been pardoned by the property authority; and
    • The person has not received a deferred sentence.

    Remember, while someone with a felony conviction can regain their right to possess a weapon in New Mexico, they may still violate federal law by owning a firearm.

    Are There Defenses for a Felon Whose Spouse Owns a Firearm?

    Some legal defenses may convince the prosecutor that the felon did not have control over the firearm, resulting in dropping the charges. To prove possession, the prosecutor must show the felon knew about and could control the firearm. If the spouse keeps their firearm locked in a safe deposit box outside the home, the control element of the possession offense may be defeated.