People arrested on suspicion of drunk driving or drug possession may think their case is relatively simple. But they may be surprised when they hear prosecutors list all the charges that they plan to file.
Prosecutors have a lot of freedom to choose the charges they want to raise, and they often raise multiple charges to push defendants toward plea bargains. It’s a tactic called overcharging and may be good to understand when the police are working harder to keep people off the streets.
How does overcharging work?
Let’s imagine a case where the police stop someone for speeding. After they pull him over, they say they smell something and claim probable cause to search his vehicle. Their search uncovers a small stash of illegal drugs, so the police arrest him.
Now, the police haven’t yet charged our imaginary suspect with a crime. The police don’t press formal charges. That’s up to the prosecutor. Instead, they write up their report, noting the drugs, plus any paraphernalia, as well as the suspect’s behavior. If the suspect was out on the streets when he should have been staying at home, they might also record that information.
Shortly afterward, the prosecutor gets the report and decides how to proceed. Our imaginary suspect, who might think he’s just facing a misdemeanor possession charge, may learn that he’s facing:
- Possession of paraphernalia
- Possession with intent to distribute, depending on the quantity or other evidence
- Resisting arrest, if he was rude to the officers
- Driving with expired license tabs
- Violating a stay-at-home order
Suddenly, our imaginary suspect thinks the picture looks so much more serious than he expected. But that’s the goal. Prosecutors aren’t likely to press charges for simply violating a stay-at-home order. There’s almost no way they can prove beyond a reasonable doubt that someone wasn’t going to the grocery store. Instead, prosecutors often use these extra charges as leverage to negotiate plea bargains, as well as to manipulate juries.
The problem with overcharging
If our imaginary suspect doesn’t fully understand his rights or options, he may plead guilty to avoid what he sees as the worst-case scenario. But should he do this? What if those drugs were someone else’s? If the man was driving a borrowed car or had just picked up a friend, who dropped his bag in the car, should he plead guilty to one charge just to avoid the others?
He needs to remember he’s innocent until proven guilty. The number of charges doesn’t matter. The prosecutor needs to prove each and every charge beyond a reasonable doubt, and that rarely happens.
How can you fight overcharging?
At Kammen & Moudy, our attorneys understand how prosecutors use extra charges as leverage. They wouldn’t raise many of the charges they bring against defendants if they weren’t looking to push them toward a plea bargain. We believe that defendants deserve to understand the merits and questions behind every single charge, so we work hard to get the facts and advise our clients of their best options. Sometimes, that may be a plea deal. Many times, it’s fighting the charges in court.