California has enacted a new law that restricts the sale, use, and possession of sniperscopes with “night vision” capabilities (PC 468).
In short, a sniperscope, or “sniper scope,” is a telescope, usually a monocular telescope, that is capable of being affixed to a firearm, usually a rifle, and which uses optical magnification via curved lenses to make distant objects appear larger in the sniper’s view port (ocular lens).
“Nigh vision” is the use of technology that detects and intensifies the invisible infrared radiation (IR) [heat signatures] of objects, including an object’s low-level IR, mid-level IR, and thermal radiation, and which makes an object “visible” to the human eye that is not otherwise visible to the human eye due to darkness (i.e., nighttime).
PC 468 Law
According to California penal code section 468: Any person who knowingly buys, sells, receives, disposes of, conceals, or has in his possession a sniperscope shall be guilty of… possession of sniperscope with night vision capabilities (PC 468 Abbrev.).
Also, “a sniperscope means any attachment, device or similar contrivance designed for or adaptable to use on a firearm which, through the use of a projected infrared light source and electronic telescope, enables the operator thereof to visually determine and locate the presence of objects during the nighttime" (PC 468 Abbrev.).
Confusion of PC 148 Terms: The phrase ‘through the use of a projected infrared light source…’ is not clearly defined in PC 468. This can cause confusion because infrared light (IR) detection technology does not “project” infrared light; rather, infrared light detection technology detects the IR, which can then be amplified or intensified by electronic means within the telescope, and then “projected on the user end of the telescope for the user’s view.
Also, the term “…electronic telescope” refers to the electronics used to amplify or intensify the infrared light source. PC 468 law does not address the legality of optical telescopes, which magnify objects within the visible light spectrum.
Despite the confusing draft, it appears that all forms of IR detection sniperscopes, regardless of whether the IR detection sniperscope uses object magnification technology, are illegal in California, including near-infrared, mid-infrared, and thermal-infrared light detection sniperscopes (i.e., “night vision and thermal detection devices).
Amplification of Visible Light: PC 148 does not include sniperscopes that amplify visible light, such as the amplification of moonlight, or the use of a flashlight. Rather, PC 468 concerns itself with sniperscopes that are designed to detect non-visible light (Infrared Light [IR]).
Example I: David uses heavy duty tape to attach a flashlight to his sniper rifle. Result: David ha not violated PC 468 because a flashlight does not detect infrared light; it creates visible light to see object at night (Not the invisible infrared light emitted from the object).
Example II: Goliath uses a night vision monocular while hunting at night. Goliath does not attach the monocular to his rifle. Result: This is a close call. The monocular could be ‘adaptable to use on a firearm,’ and therefore, depending on the circumstance, Goliath could be charged with PC 148.
Example III: Methuselah has a sniperscope in his house. The sniperscope is capable of IR detection, but Methuselah has never attached it to a rifle. Result: Methuselah may be charged with PC 468 because he has constructive possession of a sniperscope. It does not matter that he never attached the “Night Vision” sniperscope to a rifle.
Example IV: David gives Goliath a sniperscope with night vision capabilities (IR detection capabilities). David knows that the sniperscope is a night vision scope, but Goliath does not. Result: David may be charged with PC 468, but Goliath should not be charged with PC 468. This is because it is illegal to knowingly give a night vision sniperscope to another person, but the person who receives the night vision scope must be aware of its night vision capabilities to be charged with PC 468.
PC 468 Punishment
PC 468 Jail Sentence: Possession of a sniperscope with IR detection capabilities (“night vision), is classified as a misdemeanor in California. If found guilty, the defendant could be sentenced to jail for up to a year.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail sentence, and which is granted in some cases so long as the defendant complies with certain “conditions of probation.”
A probation sentence is allowed in PC 468 cases, but a probation sentence is not guaranteed after a conviction of possession of a night vision sniper scope. Whether a probation sentence is granted after a PC 468 conviction depends on many circumstances, including the defendant’s criminal history, the sophistication of the alleged offense, the terms of any negotiated plea bargain, and more.
Court Supervision: If the defendant is granted a probation sentence after a conviction for penal code 468, the defendant’s probation sentence will monitored by the court (court supervision), as opposed to a felony probation officer.
Note: A probation sentence may include a term of jail as a condition of probation. However, when a probation sentence includes a condition of jail, that jail sentence usually, but not always, be served alternatively on work release or house arrest.
County Jail Sentence: If the defendant is not granted a probation sentence after a PC 468 conviction, then any jail sentence ordered as part of the conviction will be served in a local county jail, as opposed to a state prison, and that the county jail sentence may be reduced by up to fifty percent (50%) if the defendant serves his or her jail sentence with good behavior.
Fines: If found guilty of PC 468, whether by plea, or after a jury trial, the defendant could be ordered to pay fines up to $1,000. This fine does not include any court security fine, restitution, or civil lawsuit fines that may be added.
Additional Punishment: In addition to the penalties and punishments of jail and/or probation, if found guilty of possession of a sniperscope with night vision capabilities, the defendant could face direct and indirect punishment related to immigration consequences, military service, professional licensing, civil lawsuits, criminal protective orders, loss of firearm rights, and more.
PC 468 Common Defenses
Common defenses to penal code 468 charges include insufficient evidence to prove the defendant possessed the sniperscope, mistake of fact as to the sniperscope’s night vision capabilities, duress, illegal search and seizure, Miranda violations, coerced confession, entrapment by law enforcement, vagueness of PC 468 requirements (See PC 468 Legal Confusion Above), statute of limitations (one year), and more.
Note: PC 468 appears to make “night vision” sniperscopes illegal, but only if the night vision is related to IR technology. PC 468 does not appear to make the enhancement of moonlight, starlight, or ambient light illegal, so long as the enhancement of that light is not via IR technology.
In addition to the common defenses listed above, PC 468 itself provides exemptions for certain people and entities. Per PC 468: This section shall not prohibit the authorized use or possession of such sniperscope by a member of the armed forces of the United States or by police officers, peace officers, or law enforcement officers authorized by the properly constituted authorities for the enforcement of law or ordinances; nor shall this section prohibit the use or possession of such sniperscope when used solely for scientific research or educational purposes.
Note: PC 468 law does not make illegal the possession, sale, or use of non-night vision sniperscopes; however, other California law can make certain types of firearms and firearm accessories illegal. Also, California law is in constant flux on firearm laws. It is important to consult a firearm expert or criminal defense attorney before taking possession of, or selling any firearm or firearm part or accessory, including sniperscopes.
Post Conviction Options: After a conviction for PC 468, whether by plea of guilty (or "no contest") or by trial, the defendant may have some of the following post-conviction options: withdraw a plea (PC 1018), appeal the misdemeanor conviction, expunge the misdemeanor conviction (PC 1203.4), apply for a certificate of rehabilitation (PC 4852), and more.
For more information on California penal code 468, illegal possession of a sniper scope with night vision capabilities, contact our criminal defense legal team for a free consultation. Our criminal defense attorneys have successfully handled thousands of misdemeanor and felony crimes in the Inland Empire, including Ontario, Redlands, Rancho Cucamonga, Fontana, Rialto, San Bernardino, Victorville, Yucaipa, Riverside, and more. Call today!
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