How To Get Felony Charges Dropped

Posted on June 11, 2021

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.

What are 5 ways to get criminal charges dropped?

5 of the most common ways for defendants 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 defendants need to make an informed decision about how to fight the charges.

Lack of probable cause

In order to make an arrest or pursue a criminal charge, police and law enforcement must have probable cause to believe that a crime has been committed. 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, a defendant can get their 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 the defendant 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 the defendant.

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 the defendant's constitutional rights.

Violation of your constitutional rights

Felony charges can also be dropped if the defendant shows that there was a violation of his or her constitutional rights. If there was a violation, then 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 defendants make the right decision in their circumstances.

Cooperate with prosecutors on another case

Occasionally, defendants will have the opportunity to have their felony charged dropped in exchange for their 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 a defendant if the defendant has 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, the defendant can have their charges dropped and can ensure their 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 the defendant pleading guilty, receiving a suspended sentence, and then entering the program. If the defendant completes the diversion program successfully, the charges are then dropped by the district attorney.

Many pretrial diversion programs have strict eligibility requirements. Defendants with a criminal record 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 the defendant's criminal case back to court, having already pled guilty to the charges.

Is it worth pleading guilty to a misdemeanor to drop felony charges?

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 someone's 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 whether to take this type of plea bargain is critical. An attorney can give defendants the insight they need to make the right choice.

About the Author

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Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

How To Get Felony Charges Dropped

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