orc4hire wrote:EricS76 wrote:
Yes, the change in the law shifts the burden of proof from the defense to the prosecution. In turn that will make it harder for the prosecution to get a conviction. But the fact remains that if the prosecution can disprove the presumption that a person was traveling, there will most likely be a conviction.
Go back up and check my link to glock talk. There is a lengthy discussion and a person who said many times the law said he could carry all the time in his car and be fine. He then contacted his representative, and he/she told him exactly what I had said before.
I read it and wasn't impressed. There's a lot of nonsense about how the prosecution can challenge the presumption by introducing evidence of groceries and travel times and whatnot. But the law is explicit that to challenge the presumption the prosecutor has to disprove those facts that give rise to the presumption, and those facts are the ones laid out by the new law.
I have not seen anyone in that thread on Glocktalk address that. And you avoided addressing it just now.
To clarify, yes, certainly the prosecution can challenge the presumption. I don't recall anyone saying they couldn't. But I HAVE seen a lot of people make . . . counter-factual statements about HOW they can disprove that.
The law is explicit on this. To break the presumption the prosecutor must disprove the facts from which the presumption arises. _No other facts, specifically those to do with travel time, or groceries, are relevant_. THESE are the relevant facts, as laid out clearly in the new law:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.
Can those facts be challenged? Certainly. I see most challenges coming from (5). (And maybe (2) and (3), but in those cases a misdemeanor weapons charge is probably just the cherry on top.) But if you meet those criteria there is no basis for a SUCCESSFUL challenge.
That's what the law says. If you believe it says otherwise I would be interested in hearing specifics, not vague hints that 'the presumption can be disproved.'
