St. Paul Criminal Defense Lawyer Kevin DeVore
Criminal charges after a violent crime can be complex. In most cases, there is a primary charge, and then additional charges are made which can affect the sentence. As an example, the primary charge might be felony murder, and additional charges may relate to gang activity or weapons charges.
These additional charges can be serious and impact the length of a sentence directly under mandatory sentencing guidelines. A drive-by shooting is considered a felony weapons charge.
What is a Drive-By Shooting?
A drive-by shooting is a shooting from a vehicle toward another vehicle or building. It can also be charged if a person shoots when just exiting a vehicle. The drive-by shooting is a crime in itself. If a person, intended or not, is harmed or killed by the shooting, charges will result from the intended or unintended injury of others.
Shooting another person to death inside a car is murder, but not necessarily a drive-by shooting. Shooting the wrong person from a car, or killing someone who was not the intended target, is still murder, with the additional charges of by drive-by shooting.
In the past, hunting was allowed from a vehicle, but at this time, Minnesota law does not allow hunters to shoot from vehicles unless they have special disabled hunter’s certification.
The legal definition of a drive-by shooting includes a restriction on shooting with firearms, crossbows, and rifles and shotguns, in addition to handguns and any illegal firearms. In Minnesota, the term ‘vehicle’ includes vehicles for use on water and snow, such as boats and snowmobiles, in addition to cars, trucks, motorcycles, and commercial vehicles.
There have been reports of a drive-by shooter riding a bicycle during the commission of the crime in other states, but in most cases people on bicycles are victims of drive-by shootings.
Additional charges can be brought after a drive-by shooting if there are other weapons charges, such as if the person shooting is on probation and not allowed to have a weapon, or if the person charged does not have a permit to carry concealed. Having a weapon in a vehicle is considered carrying concealed. Illegal weapons also carry additional criminal charges.
Other additional charge can result from gang-related activities, or if others are endangered. A drive-by shooting on school grounds, for instance, or from a school bus, will have additional charges. If drugs or substance abuse are involved, and the vehicle is being operated in a way that impacts public safety, those charges may also be added.
In determining charges, authorities will take into account how much danger the general public was in as a result of the activity. A public gathering, for instance, can be impacted by a drive-by shooting with more danger to a greater number of people.
Types of Murder Charges
There are many factors that go into the decision by authorities to press criminal charges. Murder charges are first degree, second, and third degree. There are significant differences in the severity of sentencing with each, including life in prison without the possibility of parole for first degree murder charges alone. First degree implies planning or premeditation, and bringing a gun into a car and then driving around until the selected victim is found is considered planning. This includes crimes of retaliation or revenge. Revenge is not considered a valid legal defense.
If, while engaged in a drive-by shooting, an innocent bystander is accidentally hit by a bullet or a fragment of shrapnel as a result of the shooting, and killed, murder charges for that person’s death can be charged as second degree murder, or unintended murder. There are expanded mandatory sentencing requirements if the victim of a drive-by shooting was a child or an unborn baby.
Impact of Gang Activity with Drive-By Shootings
Not all drive-by shootings are gang-related. If there is gang-activity related to the shooting, however, the charges will include an additional charge related to the gang activity. In addition, having registration on a gang database means a person cannot legally have a firearm or a permit to carry a concealed weapon. Being in a car in which another person has left a weapon is also considered access to that weapon.
If the gang activity is related to the illegal sale or distribution of drugs or weapons, those charges can be added to the primary charge, and can impact the sentencing. A vehicle that is part of a drive-by shooting incident can be searched by police, and any illegal weapons or drugs found as part of that search can also form new charges.
Special Circumstances
Even if no one is hurt, shooting a firearm out of a vehicle can be charged as a drive-by shooting. Shooting out of a vehicle can result in charges of reckless endangerment or reckless discharge of a weapon, and both can be charged as felonies.
If any weapons, vehicle, gang-related, or drive-by shooting crimes occur on school grounds, on school buses or during school activities, such as athletics, or on the grounds of child care centers, additional charges can be laid.
If the victim of a drive-by shooting is a domestic partner with a protection order, then the violation of that protection order by an act of violence will bring additional charges.
If the drive-by shooting occurs as part of a public protest or legal gathering, such as a march, the endangerment of the larger number of people can bring charges. In addition, if the crime is triggered by hate, federal hate crime charges can be brought.
Sentencing Guidelines
Minnesota law details sentencing guidelines for judges. Judges do not have the authority to violate the sentencing guidelines. Especially for violent crimes, such as felony murder and the three-strikes rule, judges will not reduce a mandatory sentence.
In addition to sentencing guidelines for the primary crime, such as felony murder, other additional charges bring mandatory sentencing. Weapons charges, gang-related criminal activity, violation of a protection order, and other additional crimes can increase the mandatory sentence. These guidelines are part of Minnesota law and the courts have little ability to negotiate the sentence down from the mandatory standards.
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Posted 13th December 2018 by DeVore Criminal Defense