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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27740
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My 20 yr old son has been charged in the state of MN with 152.025

Customer Question

My 20 yr old son has been charged in the state of MN with:
Subdivision 1.Sale crimes.
(a) A person is guilty of a controlled substance crime in the fifth degree and if convicted may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both if:

(1) the person unlawfully sells one or more mixtures containing marijuana or tetrahydrocannabinols, except a small amount of marijuana for no remuneration;

Subd. 16.Small amount.
"Small amount" as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.

The charges/complaint indicates that it was 2 grams marijuana for $25 (he was set up by a CFI wearing a wire). At the initial hearing the issue of jurisdiction was brought up because he is charged in county B, while the complaint states that it happened at his residence, which is in county A. The prosecution rescheduled the hearing to give them time to verify; at the 2nd hearing, prosecutor stated that they had misinformation in the complaint but that the police reports indicate it did happen else where in their county (B). It is now rescheduled pending our review of all of the evidence.

Should this case be dismissed because the charge is NOT supportive of the evidence?

Thank you for any help you can provide.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 6 years ago.

The case can be dismissed for lack of jurisdiction, but this is not a decision on the merits of the case. It's a matter of what court has the right to hear the evidence. The reality of the situation is that if this is just an error in the paperwork, then the prosecutor will be given leave to refile, which they almost certainly will. And, if it is not an error, then it can likely be filed in the other county.

It would be perfectly reasonable for the defense to make the jurisdictional argument and ask for dismissal, but if it's a clear error, rather than dismiss, the judge may allow the court papers to be amended rather than put everything back at square one.

Customer: replied 6 years ago.
What about the fact that it was a small amount (2 grams) and they are charging him with a felony?
Expert:  Zoey_ JD replied 6 years ago.

A small amount for no remuneration would mean that he received no money for it. He got $25. It's not enough to make him a drug kingpin. But it's remuneration and the case would not be dismissable on those grounds.

Assuming it survives the jurisdictional issue, the state will very likely reduce the matter to a misdemeanor or at least offer some kind of a misdemeanor disposition.
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Customer: replied 6 years ago.
That would make sense. Thank you for your help!