People who don’t have a lot of experience with criminal defense will have different opinions about whether a fifth degree controlled substance charge is serious or not. Some people may provide personal examples of their friends who received diversion that ended in dismissal of charges, while others may point to their relative who received a substantial jail sentence, or even prison, for seemingly the same circumstances. Because of those varying opinions, people who face a fifth degree controlled substance charge may be confused and not know how to approach the situation they’re in. This article will explain why a fifth degree controlled substance charge is a serious matter. We’ll endeavor beyond just saying, “yes, it’s serious,” and detail the problems someone with a fifth degree controlled substance charge can encounter. At Lundgren & Johnson, we believe that a proper explanation is more important than just giving the correct answer.
Fifth Degree Controlled Substance Charge Outcomes – Dismissal, Acquittal, Diversion, Probation, Jail, or Prison.
A Fifth Degree Controlled Substance Charge can be a Gross Misdemeanor or Felony
To many people’s surprise, a fifth degree controlled substance charge can either be a gross misdemeanor or felony depending on the circumstances. While all criminal charges deserve the attention of an experienced criminal defense lawyer, felonies in particular can have a devastating impact on a person’s reputation, employment, education, and housing.
Fifth Degree Controlled Substance Charge as a Felony
A fifth degree controlled substance charge will arise from one of two offense types: possession and sale. In some circumstances, both offense types are charged. Fifth degree controlled substance offenses are defined by Minnesota Statute Section 152.025.
Felony Sale Offenses
With regard to sale offenses, a person can be charged with a fifth degree controlled substance offense if:
- The person unlawfully sells one or more mixtures containing a controlled substance classified in Schedule IV. For reference, some examples of Schedule IV controlled substances are alprazolam, Darvon and Darvocet, and zolpidem. This scenario is governed by Minnesota Statute Section 152.025, subdivision 1.
Felony Possession Offenses
With regard to possession offenses, a person can be charged with a fifth degree controlled substance offense in the following two scenarios:
- The person unlawfully possesses one or more mixtures containing a controlled substance classified in Schedule I, II, III, or IV, except cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products or a residual amount of one or more mixtures of controlled substances contained in drug paraphernalia. This scenario is governed by Minnesota Statute Section 152.025, subdivision 2(1).
- The person procures, attempts to procure, possesses, or has control over a controlled substance by any of the following means: fraud, deceit, misrepresentation, or the like; using a false name/giving false credit; or falsely representing to be a manufacturer, wholesaler, medical professional, or other authorized person for the purpose of obtaining a controlled substance. This scenario is governed by Minnesota Statute Section 152.025, subdivision 2(2)(i-iii).
Even though an offense may be covered by the two felony possession scenarios described immediately above, a person may only face a gross misdemeanor fifth degree possession charge. We’ll explain why below.
Fifth Degree Controlled Substance Charge as a Gross Misdemeanor
Minnesota Statute Section 152.025, subd. 4(a) controls whether a fifth degree controlled substance charge will be a gross misdemeanor offense or not. It states that the charge shall be a gross misdemeanor in the following circumstances:
- The person has not previously been convicted of a violation of Chapter 152 in Minnesota (or a similar offense in another jurisdiction), AND the controlled substance is not heroin, AND the controlled substance is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units; OR
- The person has not previously been convicted of a violation of Chapter 152 in Minnesota (or a similar offense in another jurisdiction), the controlled substance possessed is heroin, and the amount possessed is less than 0.05 grams.
One noteworthy aspect is that the gross misdemeanor offense level applies to possession only, not sales. It also bears mentioning that it requires very small amounts of a controlled substance to qualify as a gross misdemeanor.
The Difference in Potential Penalties for a Fifth Degree Controlled Substance Charge
The maximum potential penalty for a gross misdemeanor offense in Minnesota is 364 days in jail and/or a $3,000.00 fine. Importantly, any sentence of 364 days or less is governed by local correctional facilities, not prisons. That means a person charged with a a gross misdemeanor cannot be sentenced to prison. It is also important to note that the statutory maximum is just that, the maximum. It does not necessarily mean the person will be required to serve a year in jail, but it is a possibility. If a person is convicted of a gross misdemeanor, the judge has the discretion to impose a sentence consistent with the statutory objectives of sentencing. Those objectives include rehabilitation, risk reduction, public protection, restitution, retribution, deterrence, and public condemnation of criminal conduct. Many gross misdemeanor sentences are derived from plea agreements between defense lawyers and prosecutors, approved by the judge, and do not call for any jail time to be served.
The maximum potential penalty for a felony fifth degree controlled charge if the person is convicted is 5 years imprisonment and/or a $10,000.00 fine. This means a person charged with a felony level offense can be sentenced to prison. That doesn’t necessarily mean the person will ultimately be ordered to serve prison time, but again, it is a possibility.
Felony offenses are governed by the Minnesota Sentencing Guidelines, which make them unique from gross misdemeanor sentences which are not. The Minnesota Sentencing Guidelines have a sentencing grid specific to controlled substance offenses. It looks like this:
The shaded portion of the grid are presumptive probationary sentences, while the white portion are presumptive commitments to prison. As you can see, a fifth degree controlled substance charge that results in a conviction is a level D2 offense, and a person with a criminal history score of 0-5 will have a presumptive probationary outcome. However, if the person has a criminal history score of 6 or more, then the presumptive sentence would be a commitment to the Minnesota Department of Corrections (prison). While this is one possible way a person could end up in prison from a fifth degree controlled substance charge, it is not the only way. We’ll explain further below.
From Diversion to Probation, Probation to Prison
When a person enters into a diversion program for a felony fifth degree controlled substance offense, they will often have to admit to the underlying allegations. That admission will then be used against them to convict them of the offense if they fail to successfully complete the diversion program. Once convicted, they will likely receive a probationary sentence and have to follow probationary conditions.
Other people receive a stay of adjudication where they plead guilty, but are not convicted of the offense, and are placed on probation. Still others will receive neither of those outcomes, but are convicted and placed on probation subject to probationary conditions. If those conditions of probation are violated, then the judge has the discretion to sentence that person to imprisonment. In those scenarios, the stayed sentence that was hanging over the person’s head is executed, and the person is committed to the commissioner of corrections. While many people successfully complete their diversion programs or probation, unfortunately not everyone does. It is an unfortunate but all too real reality. And still, that is not the only way a person can end up in prison based on a felony fifth degree controlled substance charge.
Firearm Enhancement under Minnesota Statute Section 609.11
Minnesota Statute Section 609.11, subdvision 5 creates a three year mandatory minimum prison commitment for felony violations of Chapter 152, including a felony fifth degree controlled substance charge, when a firearm is present. The enhancement applies when the person or an accomplice had a firearm in their possession at the time of the offense. It also applies if a firearm was used, whether by brandishing, displaying, threatening with, or otherwise employing it at the time of the offense.
Any person convicted of a second or subsequent offense in which the defendant or an accomplice used or possessed a firearm is subject to a five year mandatory minimum prison commitment. The mandatory minimums established in Minnesota Statute Section 609.11 override the presumptive sentences set forth in the Minnesota Sentencing Guidelines.
Although we may sound like a broken record at this point, that is still not the only way a person can end up in prison after a fifth degree controlled substance charge.
Dangerous Weapon Enhancement under Minnesota Statute Section 609.11
Minnesota Statute Section 609.11, subdvision 4 creates a one year and one day mandatory minimum prison commitment for felony violations of Chapter 152, including a felony fifth degree controlled substance charge, when a dangerous weapon other than a firearm is present. The enhancement applies when the person or an accomplice had a dangerous weapon other than a firearm in their possession at the time of the offense. It also applies if the dangerous weapon was used, whether by brandishing, displaying, threatening with, or otherwise employing it at the time of the offense.
Any person convicted of a second or subsequent offense in which the defendant or an accomplice used or possessed a dangerous weapon other than a firearm is subject to a three year mandatory minimum prison commitment. Like the firearm enhancement, the mandatory minimums established for dangerous weapons override the presumptive sentences set forth in the Minnesota Sentencing Guidelines.
Other Potential Negative Consequences of a Fifth Degree Controlled Substance Charge
Most cases that begin as a fifth degree controlled substance charge don’t result in prison sentences, though. In fact, those that result in a conviction often do not even carry an appreciable amount of local jail. That doesn’t mean there aren’t undesirable consequences. Examples of some potential adverse consequences that apply to stayed sentences or diversion programs are below:
- Probationary conditions or conditions of diversion program that the person must follow;
- A public record of the offense;
- Ineligibility to vote;
- Difficulty in obtaining housing or employment;
- Ineligibility to possess a firearm, potentially for life;
- Ineligibility for student loans;
- Difficulty in gaining acceptance into post-secondary institutions;
- Travel restrictions;
- Disqualification from the military; or
- Adverse professional licensing action.
This is not an exhaustive list. Similarly, not all of the adverse consequences are applicable to every scenario. However, they are very real risks that apply to those charged with a felony fifth degree controlled substance charge that the person should consider.
A Skilled and Experienced Defense is the Best Way to Avoid Negative Consequences
Due to the seriousness and large impact a fifth degree controlled substance charge can have on their client’s lives, the criminal defense lawyers at Lundgren & Johnson take those cases particularly seriously. Through years of experience and honing their skills, they’ve developed an arsenal of defenses in drug cases. Some examples of those defenses are:
- Challenging the validity of search warrants for lack of probable cause;
- Attacking the veracity of the search warrant applicant;
- Challenging the lawfulness of the execution of any search warrant;
- Contesting the legal basis for motor vehicle stops;
- Challenging the legal basis for any other warrantless search, including those of homes, persons, garbage cans, and storage facilities;
- Requesting suppression of any statements, and the fruits derived from those statements, obtained in violation of the Fifth Amendment;
- Contesting the possession and/or sale of the controlled substance;
- Creating doubt about the chain of custody of the controlled substance; and
- Challenging the laboratory testing procedures utilized by law enforcement and the Minnesota Bureau of Criminal Apprehension.
Appellate Issues and Attorneys for Controlled Substance Cases
An additional benefit clients of Lundgren & Johnson receive is the experience the attorneys possess at the district court level and appellate level. District courts will occasionally make incorrect decisions on legal issues, particularly on Fourth Amendment (searches and seizures, such as homes and vehicles) issues. Our attorneys not only identify and litigate those issues at the district court, but preserve them for appeal and argue them at the court of appeals and Minnesota Supreme Court.
Other Potential Avenues Towards Mitigating Negative Consequences
When a dismissal or an acquittal on the merits are not possibilities, then our attorneys look for other avenues to limit negative consequences. Some of those include:
- Diversion programs;
- Stays of adjudication pursuant to Minnesota Statue Section 152.18;
- Exploring eligibility for specialty courts including mental health, DWI, drug, and Veterans’ court programs;
- Raising and arguing dispositional departure motions to avoid presumptive prison commitments under the Minnesota Sentencing Guidelines or mandatory minimum sentences under 609.11;
- Proactive participation in programming and assessments to limit court ordered conditions of probation, avoid jail time, and reduced duration of probation;
- Plea negotiations to reduced charges;
- Pursuing expungements to seal records of charges or convictions.
Key Takeaways Regarding a Fifth Degree Controlled Substance Charge
There are two key takeaways if you are facing a fifth degree controlled substance charge.
First, it is a serious charge with serious consequences – even if those consequences don’t involve jail or prison.
Second, a skilled and experienced criminal defense lawyer can provide tangible benefits to you and your case. Those benefits include potential dismissal or acquittal of charges, reduced conditions or duration of probation, avoidance of jail or prison time, and measures designed for reputation management. To be sure, this article is no substitute for legal advice and representation. Give the skilled and experienced criminal defense lawyers at Lundgren & Johnson a call if you’re facing a fifth degree controlled substance charge, or any other level. We’re here to help, offer free consultations, and are eager to hear from you. You can reach us at 612-767-9643, or by filling out the form below.