Discharge of a Firearm at a Person From a Motor Vehicle (''Drive-By Shooting'')

Discharging a firearm from a motor vehicle, whether the vehicle is moving or not, is a serious offense. Depending on the circumstances of the crime, a person convicted of shooting a gun from a vehicle may face years in prison. Additionally, the driver or owner of the vehicle may be charged with a misdemeanor or a felony.

A person who willfully and maliciously discharges a firearm at another person from a vehicle is guilty of felony violation of Penal Code section 26100 (c). Violation of this law applies when the firearm is discharged from any vehicle that is powered by a motor and as an intentional act meant to “vex, annoy, or injure” another person. The violation does not require that the discharge of the weapon actually injure or kill another person.

Shooting the weapon from the vehicle but not at a person or shooting at a person inside the vehicle, although a violation of other laws, would not be a violation of this particular statute. Shooting at an inhabited dwelling, which is also often thought of as a “drive-by” shooting is illegal under a different statute.

An accidental discharge of the fireman, which is not willful and malicious, is not a violation of the statute.

Example

Simon, an Orange County gang member, is a passenger in a fellow gang member’s car. He asks the driver to slowly drive down streets that are the known territory of a rival gang. Simon spots a person riding his bike and Simon points his gun out the window and shoots at the ground about 30 feet in front of the path where the bicyclist is traveling. Simon intentionally shot the firearm from the car, but did he shoot at a person, the bicyclist? Simon’s argument is that he shot some distance in front of the bicyclist to scare the bicyclist. While Simon may be guilty of another crime, Simon’s drive-by shooting defense attorney may be able to argue that Simon is not guilty of violating Penal Code section 26100(c) since Simon did not shoot AT a person as is required by the statute. On the other hand, if the prosecution successfully argues that Simon was just a bad aim and his act put the bicyclist in proximate harm, he may not have this defense.

Defenses

• You acted in self-defense. For example, a person in another vehicle pulls up to your car at a stop sign and aims a gun at you. If you shot at that person from your car window because you had a reasonable fear of immediate harm, you did not violate the statute.
• You did not act intentionally. An example would be if the firearm accidentally discharged.
• You were not in a motor vehicle. For example, you would not violate this statute if you fired the weapon from a pedal-powered bicycle.
• You did not shoot at a person as in Simon’s example above.

Penalties

Conviction of this offense is a straight felony punishable by three, five, or seven years in state prison.

Under this same statute, the driver or owner of a vehicle who knowingly allows a passenger of the vehicle to bring a loaded firearm into the vehicle may be guilty of a misdemeanor. (Penal Code section 26100(a).) If the firearm is discharged from the vehicle, the driver or the owner of the vehicle may be charged with a misdemeanor or a felony, known as a wobbler offense. (Penal Code section 26100(b).)

The key elements here are that the driver (or owner) of the vehicle knowingly allowed a passenger to bring a loaded firearm into the vehicle. If that firearm is discharged from the vehicle, the driver (or owner) of the vehicle must also have knowingly permitted the discharge of the firearm. Note that the owner of the vehicle, even if the owner is not in the vehicle at the time, can still be in violation of this statute if he or she knew and permitted the loaded firearm in the vehicle and/or knew and permitted the shooting of the firearm from his or her vehicle. Another important point is that the actual shooter, to violate the statute, must shoot at another person. But this is not a requirement if you are the driver or owner of the vehicle. The statute states only that the firearm is discharged from the vehicle, but does not specify that the shooting must be aimed toward another person.

If the driver (or owner) was unaware of the firearm, there is no violation of this statute. If the driver (or owner) knew of the firearm but had a genuine belief it was not loaded, he or she may defend the charge on that ground. If the driver (or owner) knew of the firearm but did not permit the firearm to be shot from the vehicle, he or she is not guilty of the offense.

Example

Steven’s little brother asks John if he can borrow Steven’s car to take some friends to the mall. John picks up his friends and one of them is carrying a loaded pistol. That friend flashes the pistol in the waistband of his pants for all to see as he enters the vehicle. John tells his friend, “Keep that thing in your pants; I don’t want any trouble.” As John is driving to the mall, his friend removes the pistol from his waistband. John pulls over and tells his friend to get out of the car. But rather than get out of the car, his friend starts randomly shooting out of the vehicle window.

John may be charged with a misdemeanor for allowing his friend to enter the car with a pistol. But if John can prove that he thought the gun was unloaded, he would not be guilty of the offense. As to a wobbler offense -- permitting his passenger to discharge the firearm out of the car – John’s drive-by shooting defense attorney may be able to present convincing evidence to beat that charge by evidence that John told his friend to keep the gun in his pants and when his friend did not comply with that request, John pulled over and told his friend to get out of the car. Considering a different scenario, if John’s friend didn’t flash the gun when he entered the vehicle, John’s criminal defense lawyer could defend both charges since John didn’t know that his friend had a firearm when he entered the vehicle.

Steven, as the owner of the car, could not be charged under any scenario assuming he had no knowledge that John’s friend entered the vehicle with a firearm.

Defenses

• As the driver or owner of the vehicle, you had no knowledge of the firearm.
• As the driver or owner of the vehicle, you did not know the gun was loaded.
• As the driver or owner of the vehicle, you did not permit the shooter to discharge the weapon.
• The firearm went off by accident (i.e., it was not an intentional act).
• The shooter acted in self-defense.

Penalties

Permitting a person to enter the vehicle you are driving or own with the knowledge that the person is carrying a loaded firearm is a misdemeanor punishable by up to six months in jail and/or a maximum fine of $1,000.

If the driver or owner knowingly permits the discharge of the firearm from the vehicle, he or she may be charged with a misdemeanor or a felony. As a misdemeanor, the maximum sentence is one year in county jail, but a felony is punishable by 16 months, two, or three years in state prison.

An experienced drive-by shooting defense lawyer will explore every possible defense, including arguments for dismissal of the charge. If convicted, your defense attorney will argue for the lowest possible sentence, which depending on the circumstances of the crime, will often be probation with no jail or prison time.

CONTACT ORANGE COUNTY DRIVE-BY DEFENSE LAWYER WILLIAM WEINBERG FOR IMMEDIATE HELP.

Attorney Weinberg works for you! He promises to defend you against the charges to the full extent of the law. Contact him for a free consultation where he will review the details of your case and advise you of your options. You may reach him at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.