How to Get Out of a Misdemeanor – 4 Legal Strategies

Posted on August 11, 2022

There are several ways you can try to get out of a misdemeanor charge in a criminal case. Four common strategies include:

1. providing exculpatory evidence to the prosecutor,
2. completing a pretrial diversion program,
3. entering a plea bargain, and
4. filing motions that undermine the prosecutor’s case.

There are several important benefits to trying to get out of a misdemeanor case. Some of these are that you avoid:

• possible jail time,
• a criminal record if a misdemeanor conviction ensues,
• costly legal expenses, and
• fines.

1. Can exculpatory evidence help contest a misdemeanor offense?

Yes. Exculpatory evidence is evidence that shows that you are not guilty of the crime you are being accused of committing.¹

Some examples include:

• video footage that shows someone else committed the crime,
• evidence that you acted in self-defense or out of necessity, or
• someone else confessing to the crime.

If you gather up exculpatory evidence, and your criminal defense attorney presents this to the prosecutor, the prosecutor may decide to dismiss your criminal charges.

This is because:

• it becomes clear that you did not commit the criminal offense, and
• the evidence keeps the prosecutor from being able to prove the case beyond a reasonable doubt.

2. What about completing a pretrial diversion program?

A pretrial diversion program may help you get out of a misdemeanor charge.

Diversion programs allow eligible defendants to avoid the criminal court process by completing a program designed to remedy the issue which caused or led to an original arrest (for example, a drug, alcohol, or anger issue).

If you successfully complete your diversion program, then the court will generally dismiss your criminal case.²

The result is that there is no criminal conviction on your record or criminal history. Sometimes, this all happens “pre-prosecution,” which means that you can do diversion without having to enter a plea.

Note that many jurisdictions say that diversion is only available for first-time offenders suspected of committing non-violent misdemeanor offenses.³

Further, entry into a diversion program may be conditioned on approval by the:

• alleged victim,
• prosecutor, and
• judge.⁴

3. Can a plea bargain help in a misdemeanor case?

It can. A plea bargain is an agreement between the defendant and the prosecutor to resolve a criminal case.

In the deal, the defendant usually agrees to plead guilty to a charge and the prosecutor will often agree to reduce the charge or the penalties for the conviction.

Note that while a plea bargain means you plead guilty to a misdemeanor charge, the prosecutor may decide to reduce your charge to an infraction as part of the deal.⁵ This is a good thing since infractions will likely not result in a criminal record or show up on a background check.

Some common misdemeanors that a prosecutor might agree to reduce to infractions include:

• trespassing,
• shoplifting,
• petty theft, and
• disorderly conduct.

4. How does a pre-trial motion help?

The prosecution and defense often try and resolve several issues in a criminal case before a jury trial begins. Both sides typically use “motions” to help in this process.

A “motion” is a request for the court to do something. Motions may be made orally or in writing, depending on the specific motion brought.

Before trial, you can try to get out of a charge by filing a motion with the court. Evidentiary motions usually have the biggest impact.

For example, you could file a motion and try and show that:

• law enforcement seized evidence without a valid warrant,
• a police officer coerced a confession, or
• the police did not have the authority to stop-and-frisk you.

If a judge grants one of these motions, the result could be that certain evidence gets excluded from your case. Exclusion might mean that the prosecutor drops your charges since there is no good way to prove them.

5. Can a criminal defense lawyer help?

Yes. A criminal defense attorney can provide invaluable help with misdemeanor crimes (for example, a DUI).

Defense attorneys or a public defender can help by:

• finding exculpatory evidence and presenting it to the prosecutor,
• negotiating with the prosecutor to reach a favorable plea deal, and
• filing pretrial motions.

If for some reason you are ultimately convicted of a crime, a defense lawyer can help in misdemeanor sentencing by minimizing any penalties that you may face. For example, an attorney can try and help you receive community service rather than a county jail sentence.

Note that most criminal lawyers and law firms provide free consultations, meaning you can receive legal advice at no cost.

Further, your communications with your lawyer are protected by the attorney-client relationship. This means your defense attorney cannot disclose your confidences without first getting your consent.

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