Possession of pepper spray by a felon is a misdemeanor in Wisconsin.  Contact the criminal defense attorneys at Van Severen Law Office for help: (414) 270-0202

While many felons recognize they cannot possess firearms for the rest of their lives, many don’t realize that possession of pepper spray by a felon is a crime in Wisconsin.  While this charge isn’t a felony, and a conviction will not result in time in prison, it is still incredibly serious.  Possession of pepper spray by a felon is a Class A misdemeanor.  Class A misdemeanors carry a maximum possible penalty of $10,000.00 in fines, 9 months in jail, or both.  No mandatory minimum penalty applies to this charge, and a conviction could result in low end sentences such as probation or fines.  Incarceration is not required.

Our criminal defense attorneys acknowledge that defendants facing these charges frequently don’t even recognize that their conduct was criminal.  Judges advise defendants during sentencing hearings that they’re not allowed to possess firearms for the rest of their lives.  But we’ve never heard of a judge advising a defendant of his inability to possess pepper spray.  Unless you read about the law on a regular basis, or know of someone else charged with this offense, it’s possible you didn’t know your actions were criminal.

Contact Van Severen Law Office, S.C. to speak with our criminal defense attorneys about your options.  We defend individuals facing misdemeanors and felony criminal charges throughout Wisconsin.  Whether it’s a charge for being a felon in possession of pepper spray, being a felon in possession of a firearm, or any other criminal offense, we’re prepared to help.  Contact us at (414) 270-0202 to speak with us regarding your charges or to set up a free initial consultation.

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Possession of pepper spray by a felon – Wis. Stat. 941.26(4)(L)

When considering any criminal charges it makes sense to first take a look at the statute.  Section 941.26(4)(L) indicates the following:

(L) Any person who has been convicted of a felony in this state or has been convicted of a crime elsewhere that would be a felony if committed in this state who possesses a device or container described under par. (a) is subject to a Class A misdemeanor. This paragraph does not apply if the person has received a pardon for the felony or crime.

Paragraph (a) refers to containers including capsicum (pepper spray) or CS (chlorobenzalmalononitrile) gel.  While other self-defense products may be illegal for felons to possess, this statute only covers these two.

Breaking the statute down, it applies to individuals convicted of felonies in Wisconsin, or individuals convicted of crimes outside of Wisconsin that would be felonies here.  If you’re confused whether your out-of-state charge qualifies, contact the criminal defense attorney that represented you during those proceedings.  If you’re charged, contact us and as a part of our representation we’ll determine whether the prior charge is enough to qualify.  Unsurprisingly, we’ve dealt with prosecutors incapable of determining whether a prior conviction was vacated or still valid.

Wisconsin Criminal Jury Instruction 1341D – Possession of oleoresin of capsicum (pepper spray) or CS gel by a convicted felon

All crimes are based on statutes.  But sometimes those statutes are difficult to understand, and breaking them down into smaller parts is helpful when considering a criminal charge.  Those small parts are called elements.  And in Wisconsin, all of those elements must be proven by the government beyond a reasonable doubt.  Juries aren’t simply asked “did this crime occur?”  They’re instead tasked with deciding whether the government proved the existence each of the elements to the appropriate burden.

Wisconsin Criminal Jury Instruction 1341D describes the elements of being a felon in possession of pepper spray:

  • Firstly, the defendant possessed a container.
    • “Possess” means the defendant knowingly had actual physical control of the device or container.
  • Secondly, the device or container contained oleoresin of capsicum (pepper spray) or CS gel.
  • Thirdly, the defendant had been convicted of a felony before the date of the offense.

The elements for this crime are simple.  There’s possession of an item, that item contains something, and the defendant has a valid felony conviction on his record.  Frequently, in cases such as this, the charges revolve around whether the defendant had actual possession of the item.  Is it possession if the defendant was in the passenger seat of a vehicle he didn’t own, and the pepper spray was found underneath the driver’s seat?  What about a situation where cops find the pepper spray tucked away in an air duct, covered in dust?  These are the kinds of possession scenarios we frequently argue about at trial.

Why should I hire a top criminal defense attorney for my charges?

At Van Severen Law Office, S.C., we’ve heard horror stories from our clients.  We’ve heard of other attorneys over-promising and under-delivering.  We’ve heard about incompetence.  And we’ve heard accusations of other attorneys charging way too much money for their services.  Since the inception of our firm, we’ve focused on working hard for our clients, charging fair and transparent fees, and maintaining honest, clear communication.

But we’re also good at what we do.  Sometimes charges like this need an aggressive pre-trial motion filed to protect your rights.  Once that issue is resolved, sometimes cases proceed to jury trial.  But sometimes clients just want to be “done with” the situation and request that we simply get them the best possible plea deal.  We’ve done all of these things and we’ve achieved successful results in all of these scenarios.

Finally, we offer free consultations to potential clients. During that consultation, you’ll have the opportunity to meet with any of our criminal defense lawyers to discuss your case.  We’ll go through how we expect the case to proceed, how we’ll handle it, and any issues we see on the front end.  After that, you’ll have the opportunity to ask questions and decide how you want to move forward.

Contact us at (414) 270-0202 to speak with one of our criminal defense lawyers now.


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