Knives- Not all are Virginia-criminalized for carrying concealed, says Fairfax criminal lawyer

Knives and other potential and actual weapons should not be carried concealed before you know the relevant Virginia criminal law. which starts primarily at Virginia Code § 18.2-308, which mainly provides: “A. If any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material; (ii) any dirk, bowie knife, stiletto knife, ballistic knife, machete, razor, sling bow, spring stick, metal knucks, or blackjack; (iii) any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain; (iv) any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart; or (v) any weapon of like kind as those enumerated in this subsection, he is guilty of a Class 1 misdemeanor…” § 18.2-308. As a Fairfax criminal lawyer, I want people to be educated about these rights, responsibilities and Virginia criminal law risks.

Key elements of Virginia’s concealed weapons / knives crime is concealment and not requiring that it be a weapon

Possessing knives and other weapons and enumerated dangerous objects unconcealed is not the issue for the above Virginia Code § 18.2-308, which defines concealed as “hidden from common observation,” with its further definition included later in this paragraph. Watch out, then, about unintentionally or partially concealing a § 18.2-308-defined weapon or other item. Also be aware that the items listed in parts ii, iii and iv of subsection A of § 18.2-308 do not require the items listed therein to be listed as weapons, designed as weapons, nor intended as weapons. However, I am ready to argue as a possible defense that the item was either not intended (at least by the possessor) nor designed as a weapon, seeing that the word “weapon” is part and parcel of the statute’s explanation of what hidden means: “For the purpose of this section, a weapon shall be deemed to be hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon’s true nature.” There is an argument that § 18.2-308 cannot be reasonably read to criminalize carrying in a store bag a packet of single-edged razors suitable for scraping paint, nor a razor used for shaving, lest the person have to have that package in their hand fully visible.

Fairfax criminal lawyer says be ready to appeal a Virginia trial judge’s injudicious decision that an item is “of like kind as those enumerated in this subsection”

A pesky provision of Virginia Code § 18.2-308 is the bar from concealing “any weapon of like kind as those enumerated in this subsection, he is guilty of a Class 1 misdemeanor”. “For an item ‘to be a’ weapon: within the definition of “weapon of like kind,” the item must be designed for fighting purposes or commonly understood to be a “weapon.”‘ McMillan v. Commonwealth of Virginia, 55 Va. App. 392 (2009) (citations omitted). Sean Andrew Bullock lost his jury trial on that issue for a sheathed knife hanging on his neck, but won on appeal, because: “The record here is similarly devoid of evidence to establish the knife was ‘”of like kind: to a dirk or any other weapon enumerated in Code § 18.2-308(A).'” Bullock v. Commonwealth of Virginia, Record No. 0017-24-4 (2009) (unpublished) (citations omitted). Consequently, Bullock’s trial judge erred in determining that the legality of his sheathed knife was a jury question before making the initial determination whether that sheathed knives are of like kind: to a dirk or any other weapon enumerated in Code § 18.2-308(A).

What items are not among the weapons that are subject to Virginia’s concealed carry misdemeanor statute?

Here is a partial list of items that are not criminalized by Virginia’s concealed carry misdemeanor statute: Pocket knives (Wood v. Henry County Public Schools, 4 95 S.E.2d 255 (1998)); box cutters (because they do not fit the definition of a razor) (Harris v. Commonwealth of Virginia, 274 Va. 409 (2007)); a kitchen knife (Farrakhan v. Virginia, 273 Va. 177 (2007)); machetes (McNamara v. Virginia, 56 Va. App. 238 (1998)); a knife with a flexible blade (Ricks v. Virginia, 27 Va. App. 442 (1998));  a butterfly knife (Thompson v. Virginia, 277 Va. 280 (2009); and a scuba diver knife (McMillan v. Virginia, 55 Va. App. 392 (2009). Moreover, “the language of the statute does not provide that the purpose for carrying the knife is relevant.” Ricks, 27 Va. App. 442.

Unlawfully carrying concealed knives and other weapons can be a Virginia felony if perpetrated by a convicted felon

Virginia criminal law makes it a felony for a convicted felony to possess knives or other weapons in violation of Virginia Code § 18.2-308, subject to such exceptions as those whose firearms possession rights have been restored. Virginia Code § 18.2-308.2. If you have a felony conviction, it is wise to consult with a qualified criminal defense lawyer before carrying concealed weapons.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. Schedule your free in-person confidential consultation with Jon Katz about your court-pending prosecution at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.