How To Obtain a Graves Act Waiver

Gun Offense Defense Attorneys in New Jersey

An individual must normally receive a prison sentence if they are convicted of a firearm offense falling under the Graves Act. The only way to avoid this outcome is to obtain a waiver excepting you from mandatory imprisonment. This relief is commonly referred to as a Graves Act Waiver and this is typically the only way to maintain your liberty if you are convicted of unlawful possession of a handgun, possession of a firearm while committing a crime or another charge triggering Graves Act sentencing. Securing a reprieve in this manner is a complicated and burdensome process that requires nothing short of a highly-skilled NJ gun lawyer. Our attorneys are exceptionally positioned to represent you in this context.

We are the Law Offices of Jonathan F. Marshall, one of the state’s largest criminal defense firms, and possess qualifications to help you that are truly unique. We can offer you:

  • Over 200 years of combined experience representing clients charged with Graves related criminal charges
  • Former county prosecutors that include the Former Director of the Gun Task Force, Major Crimes Bureau, Juvenile Unit, an entire Trial Division and Special Counsel to the Governor of New Jersey
  • Certified criminal trial attorneys
  • Many successful outcomes involving waivers, Pretrial Intervention, dismissals, and even jury acquittals

Criminal lawyers with top credentials at our firm are ready to take your call anytime 24/7. To learn how we can provide you with the best opportunity for a Graves Act waiver, call 877-450-8301 for a free consultation.

Procedure in New Jersey for Waiving the Mandatory Minimum Prison Sentence Required By the Graves Act

When someone is charged with an offense falling under the Graves Act, they can only avoid prison if they secure a waiver from the sentencing requirement that the court imposes a mandatory minimum period of incarceration. This restriction applies to the following offenses: (1) possession of a sawed-off shotgun, defaced firearm, machine gun, a handgun without a carry permit, shotgun or rifle without a purchaser’s ID card, or an assault firearm; (2) possession of a firearm during the commission CDS distribution; or (3) certain person not to possess a firearm. It also applies if you possessed a firearm while committing murder, manslaughter, aggravated assault, kidnapping, aggravated sexual assault, aggravated criminal sexual contact, robbery, burglary, or escape. You will have to secure a waiver in accordance with N.J.S.A. 2C:43-6.2 or face the mandatory prison term required by the Graves Act. In order to be eligible for the safety valve of a waiver, you must be a first time offender and must demonstrate that the interests of justice would not be served if a Graves Act term of imprisonment were imposed.

Standard Graves Act Sentences. The Graves Act mandates a prison sentence of at least 42 months during which the defendant is ineligible for parole. This is typically referred to as a mandatory minimum sentence of 42 months. The sentence is reduced to a mandatory minimum of 18 months where the predicate offense is a fourth-degree crime.

Special Considerations for Out of State Residents. The Attorney General has issued a directive outlining the special considerations that should be undertaken when the applicant for a waiver is an out of state resident who brought his/her handgun, shotgun, rifle or other firearms into NJ. A detailed discussion of this subject may be found at Out of State Handgun Owners Seeking Graves Act Waivers.

Prosecutor’s Motion. The first avenue for relaxation of the mandatory sentencing requirements of the Graves Act is for the county prosecutor or deputy attorney general to file a motion with the assignment judge of the county where the case is pending. This application must demonstrate that it “does not serve the interests of justice” to impose the prison term required by the Graves Act. Provided the required showing has been made, the judge must sentence the defendant to a period of probation or reduce the prison sentence to a one year term of parole ineligibility. Another possible outcome resulting from a waiver is admission into Pretrial Intervention, although this option is viewed as exceptional under New Jersey law.

Motion of Defense Counsel. Another way to secure a waiver is by your attorney to file a waiver motion with the trial judge handling your case. The required showing to succeed is again that the interests of justice would not be served by imposing the mandatory minimum prison term. If the trial judge finds in your favor, he/she then refers the application to the assignment judge for final approval.

Drug Court Does Not Apply. When a defendant is charged with unlawful possession of a handgun or another Graves Act offense, they are ineligible for Drug Court. What this means is that Drug Court is not an option for escaping sentencing — only a waiver can achieve this outcome.

Appealing Prosecutor Denial. A prosecutor who denies an application for a waiver must put his/her reasons in writing. This decision may be appealed to the assignment judge but the burden for success is high, namely a showing that the decision was a patent and gross abuse of discretion that rose to the level of being arbitrary or unconstitutionally discriminatory.

New Jersey Graves Act Waiver Attorneys

There are many hurdles that must be cleared in order to succeed in obtaining a Graves Act waiver. Your lawyer will have to first convince the prosecutor not to file an objection or to file the motion on his/her own otherwise the burden escalates dramatically. Then the trial judge and/or assignment judge will have to be persuaded that it would be an injustice to impose the mandatory sentence required by the Graves Act. What should be clear to you after considering what is required is that the attorney you select will have to be extremely skilled in defending firearm charges and, if at all possible, in securing Graves Act waivers. The team of attorneys at the Law Offices of Jonathan F. Marshall has these attributes and even includes a former Gun Task Force Director. If you have been charged with possession of an illegal handgun or any other Graves related offense, call us at 877-450-8301 and one of our knowledgeable defense lawyers will provide the guidance you need.