The presumption can be overcome if Def. is otherwise engaged in criminal activity...

A car with multiple people inside is stopped and searched based on PC b/c of the odor of Marij. and pot is found along with a pistol. One of the passengers admits the pot is his. Another is charged with Unlawfully carrying.

Assuming that all the other factors are met, does the fact that the pistolero is NOT charged with the possession of marij. still allow overcoming the traveling presumtion (b/c of def. engaging in criminal activity)?

In other words, does being in a car with a person committing a crime (POM) eliminate the traveling presumption?

I think I would give it a try with the argument that a van of drug dealers shouldn't be allowed a free weapon just because the one person with a weapon swore he had nothing to do with the drugs.

At least I'd cause the person some trouble!

Remember that the presumption is just that -- a presumption that the jury is instructed on. I'd say you've got a fact issue here. Nothing in the presumption says he has to have been charged or convicted of criminal activity. The jury is the one who should be making the decision of whether your defendant was engaging in criminal activity.

Maybe so, maybe no, but you have a good faith basis, I think.

I'd be ready for an argument from the defense that if YOUR OFFICE did not charge him with the possession crime, then he must not be engaged in criminal activity. AND be prepared to prove that the UCW defendant was engaged in the possession. Of course you can respond that not all defendants are charged with all crimes they may have committed (DWI / Speeding come to mind; a stop for speeding results in arrest for DWI, there is frequently no speeding charge filed). If you are pretty sure that you are not going to even charge the UCW def. with any other offense, I'd think twice about charging the UCW - based only on the facts you presented. But, I think the traveling presumption is a crock and the leg. needs to fix it ASAP.