How Does The Use Of A Gun Affect A Charge In Oklahoma?

In general, the use of a gun will turn a crime that might have otherwise been a nonviolent crime into a violent crime. The primary effect of that will be to increase the time the defendant may spend in prison. It can also increase the mandatory minimum amount of time the defendant will have to spend in prison.

Enhancement For Weapon Possession

Use Of A Gun

Anyone who discharges a firearm while committing or attempting to commit a crime of violence, in addition to the penalty provided by statute for the crime of violence committed or attempted, upon conviction, may be charged with an additional felony for possessing such weapon. The district attorney has discretion to charge this additional crime. This separate offense is a felony.

The minimum punishment in the Department of Corrections is ten years. This time may be served concurrently with the sentence for the crime of violence.

“Crime of violence” means an offense that is a felony and has as an element of the offense, the use, attempted use, or threatened use of physical force against someone or that by its nature involves a substantial risk that physical force against someone may be used in the course of committing the offense. “Firearm” means a rifle, pistol, or shotgun.

SOURCE: 21 O.S. § 1287.1

Violent Crimes In Oklahoma

Oklahoma considers some crimes “violent” crimes. These are listed in 57 O.S. § 571. A defendant convicted of a violent crime must serve a greater percentage of their sentence before being eligible for parole. Violent crimes that could involve firearms are:

  • Murder (21 O.S. §§ 701.7 & 701.8);
  • Manslaughter (21 O.S. §§ 711 & 716);
  • Rape in the first degree (21 O.S. § 1114);
  • Assault, battery, or assault and battery with a dangerous or deadly weapon (21 O.S. § 652);
  • Shooting with intent to kill (21 O.S. § 652);
  • Assault, battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm (21 O.S. § 652);
  • Armed robbery (21 O.S. § 801);
  • Robbery with dangerous weapon or imitation firearm (21 O.S. § 801);
  • Use of a firearm or offensive weapon to commit or attempt to commit a felony (921 O.S. § 1287);
  • Drive-by shooting (21 O.S. § 652); and
  • Pointing firearms (21 O.S. § 1289.16).

SOURCE: 57 O.S. § 571

“Unborn child” means the unborn offspring of human beings from the moment of conception, through pregnancy, and until live birth including the human conceptus, zygote, morula, blastocyst, embryo, and fetus.

The laws on Shooting With Intent to Kill, Assault and Battery with a Deadly Weapon, and Drive-By Shooting don’t apply to:

  • Acts that cause the death of an unborn child if those acts were committed during a legal abortion to which the pregnant woman consented; or
  • Acts that are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment.

Under no circumstances will the mother of the unborn child be prosecuted for causing the death of the unborn child unless the mother has committed a crime that caused the death of the unborn child.

Assault And Battery With A Deadly Weapon

It’s a violation of 21 O.S. § 652 to commit any assault and battery upon another, including an unborn child, by means of any deadly weapon, or by such other means or force as is likely to produce death, or in any manner attempt to kill another, including an unborn child, or in resisting the execution of any legal process. The maximum punishment in the Department of Corrections is life.

SOURCES: 21 O.S. § 652 & 63 O.S. § 1-730

Shooting With Intent To Kill

It’s a violation of 21 O.S. § 652 to intentionally and wrongfully shoot another with, or discharge, any kind of firearm, with intent to kill any person, including an unborn child. This crime is a felony. The maximum punishment in the Department of Corrections is life.

SOURCES: 21 O.S. § 652 & 63 O.S. § 1-730

Drive-By Shooting

It’s a violation of 21 O.S. § 652 to use a vehicle to facilitate the intentional discharge of any kind of firearm, crossbow, or other weapon in conscious disregard for the safety of any other person, including an unborn child. This crime is a felony. The range of punishment in the Department of Corrections is two years–life.

SOURCES: 21 O.S. § 652 & 63 O.S. § 1-730

Robbery Or Attempted Robbery With Dangerous Weapon Or Imitation Firearm

It’s a violation of 21 O.S. § 801 to use any firearms or any other dangerous weapons (whether the firearm is loaded or not) or use a blank or imitation firearm (which is capable of raising in the mind of the one threatened with such device a fear that it is a real firearm) to rob or attempt to rob someone or rob or attempt to rob any place of business, residence, banking institution, or any other place inhabited or attended by someone at any time.

This crime is a felony. The range of punishment in the Department of Corrections is five years–life. Upon conviction of this crime, any person guilty of three separate and distinct felonies, in violation of this law, must be punished by a minimum of ten years in the Department of Corrections. The ten-year minimum sentence is mandatory. The sentence imposed upon such person can neither be reduced to less than ten calendar years nor suspended. No person may be eligible for probation or parole or receive any deduction from his or her sentence for good conduct until he or she has served ten calendar years of such sentence.

A dangerous weapon is any instrument that’s likely to produce death or great bodily harm in the manner it is used or attempted to be used. A deadly weapon is an instrument designed or constructed to cause death or great bodily injury. A pistol, revolver, dagger, bowie, dirk, switch-blade, spring-type knife, sword cane, knife having a blade that opens automatically, blackjack, loaded cane, billy, metal knuckles, and hand chain is a deadly weapon. SOURCE: 21 O.S. § 801 & OUJI-CR 4-28

Use of Firearm While Committing a Felony

It’s a violation of 21 O.S. § 1287 for any person to commit or attempt to commit a felony while possessing a(n):

Pistol, shotgun, rifle, or any other offensive weapon in such commission or attempt, whether the pistol, shotgun, or rifle is loaded or not;

Blank or imitation pistol, altered air or toy pistol, shotgun, or rifle capable of raising in the mind of one threatened with such device a fear that it is a real pistol, shotgun, or rifle;

  • Airgun or carbon dioxide or other gas-filled weapon;
  • Electronic dart gun;
  • Conductive energy weapon;
  • Knife;
  • Dagger;
  • Dirk;
  • Switchblade knife;
  • Blackjack;
  • Ax;
  • Loaded cane;
  • Billy;
  • Hand chain; or
  • Metal knuckles.

This will be a separate felony from the felony committed or attempted. The range of punishment in the Department of Corrections is two–ten years for a first offense. The range of punishment in the Department of Corrections for a second or subsequent offense is 10–30 years.

Anyone convicted of violating this law after having been issued a handgun license pursuant to the Oklahoma Self- Defense Act will have their license permanently revoked and will be liable for an administrative fine of $1,000. There must first be a hearing and determination by the OSBI that the person violated this law.

“Altered toy pistol” means any toy weapon that has been altered from its original manufactured state to resemble a real weapon.

“Altered air pistol” means any air pistol manufactured to propel projectiles by air pressure that has been altered from its original manufactured state.

SOURCE: 21 O.S. § 1287

Pointing Firearms

Except for an act of self-defense, it’s a violation of 21 O.S. § 1289.16 to willfully or without lawful cause point a shotgun, rifle, pistol, or any deadly weapon (whether loaded or not) at anyone for the purpose of threatening, with the intention of discharging the firearm, with any malice, or for any purpose of injuring someone. The injury must be either through physical injury or mental or emotional intimidation or for purposes of whimsy, humor, or prank, or in anger or otherwise. This doesn’t include the pointing of shotguns, rifles, or pistols by: law enforcement authorities in the performance of their duties; armed security guards licensed by the Council on Law Enforcement Education and Training pursuant to the Oklahoma Security Guard and Private Investigator Act in the performance of their duties; members of the state military forces in the performance of their duties; members of the federal military reserve and active military components in the performance of their duties; any federal government law enforcement officer in the performance of any duty; actors performing a play on stage, rodeo, television, or on film; someone defending any person; or someone defending their home or property.

This crime is a felony. The range of punishment in the Department of Corrections is one–ten years. Anyone who violates this law after having been issued a handgun license pursuant to the Oklahoma Self-Defense Act will have their license revoked and will be subject to an administrative fine of $1,000. There must first be a hearing and determination by the OSBI that the person violated this law.

“Defensive force” includes, but is not limited to, pointing a weapon at a perpetrator in self-defense or in order to thwart, stop, or deter a forcible felony or attempted forcible felony.

SOURCES: 21 O.S. § 1289.16, 21 O.S. § 1289.25, & 21 O.S. § 1289.17

Pointing Weapons At Others

Except for an act of self-defense, it’s a violation of 21 O.S. § 1279 to point any pistol or any other deadly weapon (whether loaded or not) at somebody. This law differs from Pointing Firearms in that this law does not require a mental state. The act of pointing a firearm, alone, is sufficient to violate this law.

This crime is a misdemeanor, so it is not considered a “violent crime” in Oklahoma. The range of fine is $100–$1,000. The range of punishment in the county jail is 3–12 months.

Someone convicted of this crime after having been issued a handgun license pursuant to the Oklahoma Self-Defense Act will have their handgun license permanently revoked and will be liable for an administrative fine of $50. There must first be a hearing and determination by the OSBI that the person violated this law.

SOURCES: 21 O.S. § 1279 & 21 O.S. § 1280

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