In Minnesota, drug crimes are classified into five different “degrees”. In this article, we’ll be covering 5th degree drug crimes and their consequences, as well as what you need to know if you’ve been charged with this crime. Because a 5th degree controlled substance offense is usually charged as either a felony or a gross misdemeanor, you must speak with a lawyer as soon as possible to form your defense and understand your options.
What is fifth degree drug possession?
According to Minnesota law, a person is guilty of a controlled substance crime in the fifth degree if:
(1) the person unlawfully possesses one or more mixtures containing a controlled substance classified in Schedule I, II, III, or IV, except a small amount of marijuana; or
(2) the person procures, attempts to procure, possesses, or has control over a controlled substance by any of the following means:
(i) fraud, deceit, misrepresentation, or subterfuge;
(ii) using a false name or giving false credit; or
(iii) falsely assuming the title of, or falsely representing any person to be, a manufacturer, wholesaler, pharmacist, physician, doctor of osteopathic medicine licensed to practice medicine, dentist, podiatrist, veterinarian, or another authorized person to obtain a controlled substance.
Note that a fifth degree drug charge can apply to both possession of controlled substances as well as the sale (or intent to sell) of controlled substances.
Possible defenses for 5th degree controlled substance charge
A skilled defense attorney will use a variety of tactics to mitigate the consequences of a controlled substance charge, such as
- Entrapment: When a law enforcement agent or authority uses deception or coercion to get someone to buy drugs (known as a “controlled buy”), this is considered entrapment. A knowledgeable defense attorney can use this to their client's advantage.
- Unreasonable or unlawful search: In some cases, a search may have been illegal and in violation of an individual's rights under the fourth or fifth Amendments.
- Legal possession: Some drugs may be obtained legally, such as if a doctor prescribes them. If an individual is arrested without their prescription and later produces it, the charges may be withdrawn.
Fifth degree controlled substance cases, like all drug cases, sometimes entail complicated legal concerns like vehicle stops, search warrants, controlled purchases, and laboratory tests, all of which should be reviewed by an experienced criminal defense attorney.
Possession vs. sale of controlled substances in the fifth degree
Possession of controlled substances is prosecuted differently in Minnesota than the sale (or intent to sell) of controlled substances.
Fifth degree drug possession includes any of the following:
- possession of any amount of a schedule I, II, III, or IV substance (this includes cocaine, heroin, marijuana, meth, LSD, Vicodin, or Xanax), but not including a small amount of marijuana (defined as less than 42.5 grams)
- possession, or attempted possession, of any amount of a controlled substance through fraud or deceit.
On the other hand, fifth degree drug sale includes:
- sale of more than 42.5 grams of marijuana
- sale of any amount of a schedule IV controlled substance, but not including a small amount of marijuana.
What to do if you’ve been charged with a 5th degree drug crime
If you’ve been charged with a 5th degree controlled substance offense, the first thing you should do is consult with a lawyer so you can begin to develop your defense. You can use sites like Avvo and Super Lawyers to find reviews of local law firms to help determine which lawyer would be best for you. Once you’ve found a lawyer, you should start by scheduling a free consultation with them.
How to avoid a conviction for a first-time controlled substance offense
An experienced criminal defense attorney may be able to help you avoid a conviction if you’re a first-time offender. Instead, you will be placed on probation, which will likely mean completing drug treatment, doing community service, paying a small fine, and agreeing to obey all laws while in the probationary period. Probation terms for a fifth degree offense can extend up to five years. As a result, the client would be spared the stigma and other negative outcomes associated with a criminal record for drug offenses.
Mandatory minimum sentence for 5th degree drug possession
Minnesota law mandates a minimum of six months in jail if you have a previous controlled substance conviction. However, your criminal defense attorney may be able to convince a prosecutor or judge to treat a subsequent violation as a first-time offense.
Consequences of controlled substance conviction
If you are convicted of a controlled substance crime, you won’t just face jail or prison time. You could lose the right to possess firearms, the right to vote or serve on a jury, have difficulty getting a job, lose your driver’s license, or lose a professional license, among several other consequences.
If you’ve been charged with a controlled substance crime, it’s critical to speak with a criminal defense lawyer right away to avoid the worst consequences. At Sheridan, Dulas & Hunstad, we’ll help you understand the facts of your case and fight for you every step of the way. To get started, schedule a free consultation with us here.