Charged with a Felony: A hypothetical defendant

Imagine this hypothetical situation of being charged with a felony:

At 11:50 p.m. on November 3rd, Derek, a person with absolutely no criminal history, drives straight home after a night of drinking with his buddies at a bar ten minutes from his home. He parks in his driveway and walks inside. Gail, his girlfriend, and her friends are watching a movie in the living room. He goes upstairs to his bedroom and pulls out some marijuana from his drawer and rolls himself a joint. There are several different baggies of marijuana with a light scale located in his dresser. He starts to smoke it, but quickly puts it out when one of his girlfriend’s friends, Victoria, appears in his bedroom doorway. She comes in and, long story short, they sleep together. Derek wakes up to police pounding up the door. Derek is arrested and brought to jail. Of course, the arrest and transportation is far from peaceful; Derek fights and protests all the way to jail, insisting he did nothing wrong. Once at jail, Derek is subjected to a urine test. Derek is asked what happened that night. He says that he slept with Victoria, but that it was consensual, in fact it was her idea. Then he says he wants a lawyer. Police put him back in jail, and he appears in front of a judge, is charged with a felony, and is released two days later after posting a $20,000 bail bond.

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Derek hires Mr. Lawson as his Minneapolis criminal defense lawyer, who quickly files a discovery motion to get the police reports and other documents. The police reports state that Gail called 911 at 12:30 a.m. on November 4th and said that Victoria said Derek raped her. When the police got to the house, they knocked on the door and Gail invited them in. Gail told the police that she heard a car stop in the driveway, Derek came in the house, and then went upstairs. Victoria, then, went up to use the restroom and came down fifteen minutes later in tears and saying that Derek raped her. Victoria said she went upstairs to use the restroom when Derek came out of his bedroom, grabbed her, pulled her into his bedroom, and raped her. The police said they found a half-smoked joint on the dresser, arrested Derek, who was far from cooperative, brought him to the police station, and, at 1:45 a.m., gave him a urine test. The police said they asked Derek questions, who gave his side of the story, then called for a lawyer. The urine test later turned out to have a blood alcohol content of .18 and also showed a reading of marijuana. Derek is charged with DWI, marijuana possession, and rape.

Driving While Intoxicated (DWI) / Driving Under the Influence (DUI)

The specific charge Derek is charged with is Driving with an alcohol concentration of .08 or more within two hours of driving, a Misdemeanor in violation of Minnesota Statutes section 169A.20, subdivision 1(5). This offense alone does not charge Derek with a felony. If he had prior DWI offenses, he could be charged with a felony (four offenses within 10 years means you could be charged with a felony).

The offense only works if the government can prove that Derek was intoxicated within two hours of driving. Here, the timing is very close – six minutes to spare. It’s close enough to raise a challenge that the reported time was inaccurate.

The bigger issue is whether the government can prove beyond a reasonable doubt that Derek was driving the car within two hours of the urine test. The common questions are whether the officers established a “temporal connection” and felt the hood of the car to see if it was still warm, if someone actually saw Derek driving the car, or if Derek admitted to it. This is called a temporal connection – there must be something linking Derek to driving the car. Derek gave no such admission. There was nothing in the police reports about the officers touching or otherwise inspecting the car. The only evidence the government has is Gail’s statement that she heard a car stop in the driveway and Derek came upstairs, and that the car was parked in the driveway. It’s a close call, but it is certainly worth challenging.

Felony Criminal Defense Lawyer

Finally, Derek has a right to have his own analysis of the urine test. If the government destroys the evidence before Derek tests it, the Defense can file a suppression motion based on destruction of evidence and inability of the Defense to conduct its own test.

Derek tells Mr. Lawson that he did drive after drinking and felt buzzed. He knew he wouldn’t cause anyone harm since he wasn’t totally wasted, but probably wouldn’t have passed a breath test before he drove. Derek says he didn’t want to plead guilty to the DWI, however, because he’d get fired from his job that he loves. Mr. Lawson says he understands and that he will do his best to keep the DWI off Derek’s record. There are actual legal issues surrounding the DWI charge, however, and Derek has a chance to get the DWI dismissed for lack of probable cause. It is absolutely worth trying. Succeeding in this DWI case is important because it does not start the felony-DWI clock. If Derek is not convicted of a DWI, his next DWI is the first DWI to start the 10-year clock in which he could be charged with a felony DWI if he gets four.

Possession of Marijuana

Derek is also charged with Felony possession of a controlled substance in the fifth degree, in violation of Minn. Stat. s. 152.025, subdiv. 2(1). Based on this offense alone, Derek is facing five years in prison. Luckily, Mr. Lawson is a great Minneapolis criminal defense attorney and calls the prosecutor and states his intention to file a motion to dismiss due to lack of probable cause as there is no evidence of sale. He argues that the small amount of marijuana, which is split into several baggies based on the type of marijuana, does not fit the statute. Based on his trustworthy relationship with the prosecutor and his good reputation, the prosecutor says he’ll reduce the drug charge to a lesser offense, which in the state of Minnesota can only be a petty misdemeanor. This way, Derek would no longer be charged with a felony.

True to his word, the prosecutor dismisses the felony drug charge and adds a charge to the complaint of Possession or sale of a small amount of marijuana, a Petty misdemeanor in violation of Minn. Stat. s. 152.027, subdiv. 4(a). Derek is now no longer charged with a felony drug offense. A petty misdemeanor is like a speeding ticket, not technically a crime because it is not punishable by jail incarceration. To be guilty of this statute, Derek only could have possessed a small amount of marijuana, which is statutorily defined as 42.5 grams or less.

Derek told his Minneapolis criminal defense attorney, Mr. Lawson, that he was guilty of this offense and would plead guilty. Mr. Lawson said he would keep that in mind for negotiations with the prosecutor, but to not admit guilt to anyone at this point in time.

Criminal Sexual Conduct (Rape)

Finally, and most seriously, Derek is charged with First degree criminal sexual conduct with force or coercion, a felony in violation of Minnesota Statutes section 609.342. Derek is appalled by Victoria’s allegations, and disputes everything Victoria told the police.

Mr. Garry, an experienced Minneapolis criminal defense lawyer, knows that this offense carries a heavy prison sentence and mandatory registration as a sexual predator, so he kicks his efforts into high gear and hires an investigator to go speak with the other women at Derek’s house that night. They tell the investigator that Victoria was jealous of Gail’s relationship with Derek. They give him recordings of Victoria complaining that Derek and Gail were too “perfect” a couple, that she wished she had a boyfriend like Derek, and that she wanted to show everyone that Derek wasn’t so perfect. The investigator then confronts Victoria with the recordings and she reluctantly admits that she seduced Derek and that Derek did not rape her. The investigator records this statement.

Mr. Lawson, a Minneapolis criminal defense attorney, gives the recordings to the prosecutor and requests that he drop the charges. The prosecutor says that he can’t drop this offense that charges Derek with a felony due to Victoria’s original allegations. Mr. Lawson, then, files a motion to dismiss this case based on State v. Florence and presents the evidence at a contested omnibus hearing. The judge grants the motion and dismisses the rape charge. Derek is no longer charged with a felony.


With the most serious rape charge dismissed, Derek is now facing a petty misdemeanor possession of marijuana charge and a misdemeanor DWI charge. The Defense’s challenge to the DWI charge has not yet been litigated. The day before the hearing to litigate the motion, Mr. Lawson calls the prosecutor to see if the case can be resolved without the hearing. The prosecutor admits, completely off the record of course, that he does not want to litigate the issue based on the lack of temporal connection. The prosecutor offers to let Derek plead guilty to the petty misdemeanor possession charge and the DWI charge will be dropped. Mr. Lawson says that will probably work, but that he needs to check with Derek. Derek readily agrees and Mr. Lawson makes the deal. The next day, Derek walks out of the courthouse with nothing but a petty misdemeanor on his record. No longer charged with a felony, Derek can breathe a sigh of relief.

If you have found yourself in a similar situation or in any other criminal situation, call the criminal defense attorneys at Ryan Garry, Attorney, LLC.