Many people charged under New Jersey’s Graves Act are ordinary, law-abiding gun owners who never intended to break the law. Yet, because of the state’s strict firearm statutes, a simple mistake such as traveling with a legally owned gun from another state can lead to a mandatory prison sentence. The Graves Act imposes some of the toughest penalties in the nation for illegal gun possession. Understanding this law and working with an experienced New Jersey attorney for gun crimes is critical to protecting your rights and your future.

What is the Graves Act?

The Graves Act is one of New Jersey’s most unforgiving criminal statutes. Its central purpose is to impose mandatory prison time for anyone convicted of certain firearm offenses.

The most important thing to understand about the Graves Act is that it removes a judge’s discretion. In most criminal cases, a judge can consider mitigating factors such as a clean record, employment, community ties, or family responsibilities when determining whether probation is appropriate. The Graves Act explicitly forbids this. The statute requires that every conviction must include a minimum term of imprisonment during which the defendant is ineligible for parole.

The 2008 Expansion: From “Use” to “Possession”

When first enacted, the Graves Act targeted individuals who used firearms while committing serious crimes such as robbery, assault, or kidnapping. Its focus was on deterring violent criminals who actively employed guns during their offenses.

However, in 2008, the New Jersey Legislature expanded the law dramatically. The revised Graves Act now applies to a broad range of possessory gun crimes. This means that you do not need to fire, brandish, or even intend to use a weapon to trigger the mandatory minimum sentence. Mere possession of an illegal firearm is enough.

Some of the most frequent charges that invoke the Graves Act include:

• Unlawful Possession of a Handgun (N.J.S.A. 2C:39-5(b))
• Possession of a Sawed-Off Shotgun (N.J.S.A. 2C:39-3(b))
• Possession of a Defaced Firearm (for example, a removed or altered serial number) (N.J.S.A. 2C:39-3(d))
• Possession of a Firearm for an Unlawful Purpose (N.J.S.A. 2C:39-4(a))
• Possession of a Firearm While Committing a Drug Offense (N.J.S.A. 2C:39-4.1)
• Certain Persons Not to Have Weapons (felons in possession) (N.J.S.A. 2C:39-7)

Most of these charges, including Unlawful Possession of a Handgun, are classified as second-degree crimes, which ordinarily carry a sentencing range of 5 to 10 years in state prison.

Under the Graves Act, judges must impose a mandatory minimum term of parole ineligibility equal to half of the sentence imposed or 42 months, whichever is greater. For lesser, fourth-degree Graves Act offenses, the minimum period of parole ineligibility is 18 months.

How to Fight for a Graves Act Waiver (N.J.S.A. 2C:43-6.2)

If you are facing a 42-month mandatory prison sentence, the situation may feel hopeless. It is not. The New Jersey Legislature created a narrow legal remedy known as the Graves Act waiver, sometimes called the “safety valve.”

This provision, found in N.J.S.A. 2C:43-6.2, gives the court limited authority to waive the mandatory minimum sentence in certain cases. However, it is a complex process with two major hurdles that must be overcome before a waiver can be granted.

• It Is Only for First-Time Offenders: This waiver is a one-time opportunity available only to defendants with no prior firearms convictions. If you have ever been convicted of a gun-related offense, you are ineligible for a waiver. In fact, prior convictions can expose you to an extended term of imprisonment under the Graves Act.
• The Prosecutor Is the Gatekeeper: The prosecutor plays the most critical role in this process. A judge cannot grant a waiver on their own. The law requires that any waiver be made “on motion by the prosecutor.”

This means your defense attorney’s most important job is not to argue with the judge but to negotiate with the prosecutor. Your lawyer must build a comprehensive mitigation package to persuade the prosecutor that enforcing the full 42-month minimum “does not serve the interests of justice” in your particular case.

This negotiation often involves:

• Examining the evidence for legal weaknesses, such as an illegal search or seizure
• Highlighting your clean record, employment, or community service
• Demonstrating that your situation represents the exception the waiver was designed to address

If successful, a Graves Act waiver can lead to one of three possible outcomes, listed below from best to least favorable.

A Critical Exception: Waivers for Out-of-State Residents

A significant number of Graves Act arrests involve out-of-state residents who were simply traveling through New Jersey. You may be a resident of Pennsylvania, Virginia, or another state where you legally possess a firearm and hold a valid carry permit. You get pulled over while passing through New Jersey, and suddenly, you are facing a 42-month mandatory prison sentence under the Graves Act.

This is a special category of defendant, and the law provides different treatment in these cases. The New Jersey Attorney General has issued a specific directive that gives prosecutors guidance on how to handle such situations.

Factors Considered for Out-of-State Residents

When applying this directive, the prosecutor’s office will evaluate several key factors, including:

• Whether you lawfully acquired the firearm in your home state
• Whether you are legally permitted to possess or carry the firearm in your home state
• The extent of accessibility of the weapon while in New Jersey, or whether there was minimal exposure to New Jersey citizens

An experienced defense attorney will focus on these factors to build your case. The goal is to demonstrate that your firearm was unloaded, locked in a case, and stored in the trunk, showing that you had no criminal intent and were simply unaware of New Jersey’s strict gun laws.

How Skilled Negotiation Can Help

When handled correctly, cases involving out-of-state residents often qualify for favorable outcomes under the Attorney General’s directive. A knowledgeable gun crime attorney can use this policy to negotiate with the prosecutor for a Graves Act waiver that allows for Pretrial Intervention (PTI) or a probationary sentence instead of mandatory prison time.

These arguments require careful preparation and presentation. With the right strategy, many out-of-state defendants can avoid incarceration and protect their criminal record while resolving the case fairly.