The 5 most common ways to get a felony charge dropped are (1) to show a lack of probable cause, (2) to demonstrate a violation of your constitutional rights, (3) to accept a plea agreement, (4) to cooperate with law enforcement in another case, or (5) to enter a pretrial diversion program. An experienced criminal defense attorney can explain which strategy may work in your particular case.
Five ways to get criminal charges dropped
5 of the most common ways to get law enforcement to drop a felony charge are to:
- show that there is a lack of probable cause to support the arrest or the charges,
- present evidence that law enforcement violated your constitutional rights during the search or seizure,
- accept a plea agreement that drops the charges, often in exchange for pleading guilty to a misdemeanor offense,
- cooperate with prosecutors in another case, and
- enter and then complete a pretrial diversion program.
Some of these defense strategies may not be an option. A criminal defense lawyer from a local law firm can provide the legal advice that you need to make an informed decision about how to fight the charges.
Lack of probable cause
Police and law enforcement must have probable cause to believe that a crime has been committed in order to make an arrest or pursue a criminal charge. If they have insufficient evidence to support probable cause, the arrest may have been unlawful, or the court can dismiss the case. By presenting enough evidence to show that there was not probable cause, you can get your felony charges dropped.
Law enforcement needs to have probable cause at 2 stages in the criminal process:
- the search and seizure stage, and
- the preliminary hearing or grand jury.
In either case, the prosecutor has to show the reasonable and articulable facts that have led law enforcement to the honest and strong suspicion that you committed the crime being charged. This standard is far lower than the beyond a reasonable doubt standard necessary at trial. Prosecutors still have to show it in order for the case to move forward.
If probable cause is not shown at the grand jury stage, then the grand jury will not indict you.
If it is not shown at the preliminary hearing, the judge will dismiss the case.
If there was no probable cause to support the search or seizure, or the arrest or search warrant, it can violate your constitutional rights.
Violation of your constitutional rights
Felony charges can also be dropped if you show that your constitutional rights were violated. If there was a violation, any evidence gathered by police as a result of their overreach will be excluded from trial. Without that evidence, prosecutors may not be able to prove their case. They may decide to drop the charges instead.
For example: Tom is driving his car. A police officer has no probable cause to pull him over, but does so, anyway. During the traffic stop, the officer finds evidence that Tom is driving under the influence (DUI). By initiating the traffic stop without any reason, the officer violated Tom’s constitutional right to be free from unreasonable searches and seizures. The DUI evidence that stemmed from the traffic stop will be excluded from trial. Without it, the prosecutor is left with nothing and has to drop the charge.
Accept a plea agreement
The most common way to get a felony charge dropped is to accept a plea agreement that includes pleading guilty to a misdemeanor charge, instead. These plea deals are frequently used when prosecutors are unsure if they can prove their case.
Choosing to plead guilty to a less severe offense is a serious decision to make. A criminal defense attorney can help you make the right decision in your circumstances.
Cooperate with prosecutors on another case
Occasionally, you will have the opportunity to have your felony charges dropped in exchange for your help. This can involve:
- cooperating with law enforcement in gathering evidence against a criminal associate,
- testifying against someone else in a different case, or
- “flipping” on a co-defendant.
Prosecutors will only drop charges against you if you have evidence that law enforcement can use against someone else. This means that this defense strategy is not very common.
The negotiations that lead to these arrangements can be extremely sensitive. If done right, you can have your charges dropped and can ensure your own protection after helping law enforcement.
Pretrial diversion programs
Some criminal offenses, especially those involving drug crimes, domestic violence, or DUIs, can be diverted into pretrial rehabilitation services. While the terms of these diversion programs vary, they often involve you pleading guilty, receiving a suspended sentence, and then entering the program. If you complete the diversion program successfully, the charges are then dropped by the district attorney.
Many pretrial diversion programs have strict eligibility requirements. If you have a criminal record, you may not be eligible. Felony offenses may be too severe to be diverted from the criminal justice system.
It is also important to talk to a lawyer before agreeing to enter a pretrial diversion program. Failing to complete the program can send your criminal case back to court, having already pled guilty to the charges.
Plea bargains for reduction to misdemeanor
It may be, but it depends on the case. There are both benefits and drawbacks to pleading guilty to a misdemeanor in order to have a felony charge dropped.
The benefits include:
- less severe collateral consequences of a conviction, as a misdemeanor offense on your criminal history may not trigger the same repercussions as a felony conviction,
- lower fines,
- less potential jail time or prison time,
- fewer immigration issues,
- getting out of jail, if bail was not an option,
- less demanding probation terms, and
- a higher likelihood that the offense can be expunged.
The drawbacks of taking this kind of guilty plea include:
- an automatic criminal conviction,
- waiving any possible legal defenses that may have led to an acquittal at trial, and
- not defending against what may have been a weak case.
Making an informed decision about taking this type of plea bargain is critical. An attorney can give you the insight you need to make the right choice.
Additional resources
For more in-depth information, refer to these scholarly articles:
- Fairness and the Willingness to Accept Plea Bargain Offers – Journal of Empirical Legal Studies.
- Felony probation: A re-examination of public risk – American Journal of Criminal Justice.
- Does evidence really matter? An exploratory analysis of the role of evidence in plea bargaining in felony drug cases – Law and Human Behavior.
- Felony plea bargaining and probation: A growing judicial and prosecutorial dilemma – Journal of Criminal Justice.
- A Multisite Evaluation of Prosecutor-Led Pretrial Diversion: Effects on Conviction, Incarceration, and Recidivism – Criminal Justice Policy Review.
