“The Magic Distance”: Why Standing Outside Your Car Might Save You from a Gun Charge

By: John Guidry

In Florida, Carrying a Concealed Firearm is a third-degree felony (for those who don’t qualify for the new Permitless Carry exemptions). But it can be tough to prove when the firearm is found in a vehicle after a traffic stop.

The reason for this is five little words found in the definition of the crime:

“A person who carries a concealed firearm on or about his person commits a felony of the third degree.” — Section 790.01(2), Florida Statutes.

The Scenario: An all-too-common scenario here in Orlando involves a traffic stop where the driver is ordered out of the car. The gun is found only after the driver is standing on the side of the road.

• The Defense: How can a gun be “on or about his person” if the “person” is outside the car, and the gun is inside the car?
• The Logic: If you can’t reach it, you aren’t carrying it.

Were you arrested for a gun found in your car while you were standing outside?

Accessibility matters. Call John today at (407) 423-1117.

The Good Case Law: White and Lamb

The answer rests in the meaning of “on or about the person,” which is defined as “physically on the person or readily accessible to him.” (Ensor v. State)

1. White v. State (1st DCA) In White v. State, 902 So. 2d 887 (Fla. 1st DCA 2005), the defendant admitted the gun was his.

• The Facts: He was standing outside the automobile at the time the officer found the weapon inside.
• The Ruling: The Appeals Court overturned the conviction. Since he was outside, the gun was not “readily accessible,” so he wasn’t carrying it.

2. Lamb v. State (2nd DCA) In Lamb v. State, 668 So. 2d 666 (Fla. 2d DCA 1996), the gun was found beneath the driver’s seat.

• The Facts: Lamb was taken into custody outside his parked car.
• The Ruling: The Court held the evidence was insufficient. Because Lamb was outside, the gun under the seat was not “on or about his person” at the moment of arrest.

The Bad Case Law: J.E.S. v. State (5th DCA)

But wait—that was the 1st and 2nd District Courts of Appeal. Here in Orlando, we deal with the 5th DCA, and they aren’t as friendly.

In J.E.S. v. State, 931 So. 2d 276 (Fla. 5th DCA 2006), the 5th DCA upheld a conviction.

• The Difference: The Court reasoned that the driver was sitting in the vehicle when the police approached, whereas in Lamb, the driver had been outside for some time.
• The Result: They bent over backwards to convict a juvenile (J.E.S. stands for the juvenile’s initials).
• The Confusion: Why can’t these courts just get along? It’s depressing to see the law twist to secure a conviction, but lucky for you, we know how to argue the difference.

John’s 2026 Update: The “Under 21” Danger Zone

Note: In 2006, J.E.S. was convicted because he was a juvenile. In 2026, age is the ONLY thing that matters.

1. Permitless Carry Saves (Most) Adults Since July 1, 2023, Florida has allowed Permitless Carry.

• The Change: If you are 21 or older and not a prohibited person (felon), you can legally carry a concealed firearm in your car without a license.
• The Impact: For most adults, the White/Lamb argument is moot because carrying the gun is legal anyway.

2. The Trap for Drivers Under 21 This is where White and Lamb are still vital defenses.

• The Law: Permitless Carry DOES NOT apply to anyone under 21. If you are 18, 19, or 20 years old, carrying a concealed firearm is still a Felony.
• The Defense: If you are under 21 and police find a gun under your seat, we must use the White argument: “Officer, my client was standing by the trunk. He could not access the gun, therefore he was not ‘carrying’ it illegally.”

3. The “Securely Encased” Rule If you are under 21, you can still have a gun in the car, but it must be Securely Encased.

• What Works: Glove box (closed), center console (closed), or a snapped holster.
• What Fails: Loose under the seat or in the door pocket.
• The Strategy: If the gun wasn’t encased, we argue you were “outside the car” (per Lamb) to defeat the possession charge.

Distance is Your Friend

If you are ordered out of the vehicle, do not try to reach for anything. Once you are outside, the legal distance between you and the gun grows, and so does your defense.

Call me at (407) 423-1117. Let’s measure the distance.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.