In criminal law, a “wobbler” refers to a crime that can be punished as either a felony or a misdemeanor. It was originally created to make sure the criminal justice system has flexibility. While the charges might be considered a felony, there are often unique circumstances that will still achieve justice by reducing it to a misdemeanor.
Only certain crimes can be considered wobblers, for example murder or manslaughter would not be considered “wobbler” crimes. Wobblers also apply to certain people, like first-time offenders, minors, or any situations where the defendant was clearly hindered/altered in some way that lessens the severity of their intent.
Usually, the prosecutor decides how they will charge the defendant, and the judge decides how to sentence the individual charged with the crime (though judges can also reduce the charge prior to sentencing).
In some cases, people who have been convicted of a wobbler felony may be able to file a petition to reduce that felony conviction to a misdemeanor.
Hundreds of criminal offenses qualify as wobblers. For instance, in California, crimes such as: statutory rape, driving under the influence (DUI), making criminal threats, burglary, forgery, and carrying a loaded firearm in public may be considered wobbler offenses. Prosecutors will usually consider several factors in determining how to charge a wobbler, including:
- The severity of the crime;
- The age of the defendant;
- The defendant’s prior criminal record;
- The likelihood of the defendant continuing to commit crimes;
- Whether the defendant is eligible for probation;
- The strength of the prosecution’s case; and/or
- The level of cooperation the defendant had with law enforcement.
An aggravating factor is one that would cause a crime that is typically a misdemeanor, to be charged as a felony. For instance, if someone was seriously injured or killed during the commission of a crime, the prosecutor would likely charge the defendant with a felony rather than a misdemeanor.
Drugs and alcohol, deadly weapons, and the type of the victim (such as a child, woman, or police officer) may all be aggravating factors. However, it’s important to remember that the circumstances for each crime will be different. While one crime with similar victims and defendants was convicted of a misdemeanor, another almost identical crime could be charged as a wobbler.
There may be small differences that might not mean a lot to the average citizen, but in the court of law it can mean the difference between a light misdemeanor or a serious felony.
It may be possible to get a felony charge reduced to a misdemeanor. Hiring a criminal defense attorney can be particularly helpful in negotiating with the prosecutor in this type of situation. It is not uncommon for a prosecutor to initially charge a defendant with a felony, and then reduce the charge with the stipulation that the defendant will plead guilty to the lesser charge.
In cases where no aggravating factor is present, and after consideration of the previously mentioned factors, such as no prior criminal record, prosecutors and judges are much more likely to drop the charge down to a misdemeanor. It also helps if the defendant shows remorse and is prepared to accept responsibility for the crime.
While it is unlikely that a charge of first degree murder can be reduced to a felony, it is possible for a first time drunk driving charge be a misdemeanor and a second or third DUI be a felony.
Mitigating factors are those that work in favor of the defendant, and may influence both the prosecutor and the judge. If the person has no prior record, the crime wasn’t very serious, and the defendant played a passive role or used caution to avoid harming others, the likelihood of a felony being reduced to a misdemeanor is much higher.
If you have been charged with a crime, you should contact a local criminal defense attorney as soon as possible. An experienced lawyer will advise you of your rights, and help you build a defense that could potentially lessen a wobbler to a misdemeanor charge. In the event that your case goes to trial, your attorney will represent your best interests in court.