New Oklahoma Law Gives District Attorneys Discretion in Filing Felonies as Misdemeanors

The Oklahoma legislature passed a number of criminal justice reform bills which were subsequently signed into law last spring by Governor Mary Fallin. Many of the laws became effective on November 1 of this year.

Among the new criminal justice reform laws taking effect earlier this month was HB 2472, a measure that allows prosecutors discretion in filing charges as felonies or misdemeanors.

Under prior and existing law, the Oklahoma criminal code specifically defines most crimes as either misdemeanors or felonies. Misdemeanors are those crimes punishable by one year or less in county jail; felonies are crimes punishable by one year or more in state prison. There are a number of crimes that can be charged as either misdemeanors or felonies--DUI, for example--but the difference is dependent on the details of the offense (often, whether it is a first or subsequent offense), rather than prosecutorial discretion.

The new law, however, give District Attorneys the discretion to file a misdemeanor charge for a crime that is typically classified as a felony.

The new law is codified in 22 O.S. § 234, and it reads as follows:

When determining the appropriate charge for a person accused of committing a criminal offense, the district attorney shall have the discretion to file the charge as a misdemeanor offense rather than a felony offense after considering the following factors:

1. The criminal offense for which the person has been arrested is not listed as a criminal offense in Section 13.1 of Title 21 of the Oklahoma Statutes;

2. The nature of the criminal offense;

3. The age, background and criminal history of the person who committed the criminal offense;

4. The character and rehabilitation needs of the person who committed the criminal offense; and

5. Whether it is in the best interests of justice to file the charge as a misdemeanor offense rather than a felony offense.

According to the first factor a DA must consider in determining whether a felony may be charged as a misdemeanor, the "85 Percent Crimes" listed in 21 O.S.§ 13.1. This means that violent felonies, including rape, murder, manslaughter, child abuse, sex crimes against children, first degree robbery or burglary, and other serious crimes will not be charged as misdemeanors under any circumstances.

Beyond that, the prosecutor has discretion based on the defendant's age, upbringing, criminal history, character, and chance of rehabilitation. In other words, someone without a criminal record who "messed up" and isn't likely to re-offend has a better chance of having a lesser charge filed than someone with an extensive rap sheet.

Prosecutors often file the most serious charges they can in a criminal case, and they may not be willing to file a felony as a misdemeanor just because they can. Even so, this new law could add a useful tool in plea bargaining. A person charged with a felony may be able to negotiate a plea to the same charge filed as a misdemeanor.

Talk to your lawyer about how this new law may affect your case.

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