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Aaron Boogard, left, still faces a misdemeanor charge for allegedly flushing evidence down a toilet. (Jim Mone/Associated Press)

A Minnesota judge has dismissed a felony charge against the brother of hockey enforcer Derek Boogaard in the player's overdose death earlier this year.

Aaron Boogard was accused of giving his brother an oxycodone pill at the start of a night of partying that led to Boogaard's death May 13 at age 28. Aaron Boogaard was charged with unlawful distribution of a controlled substance.

Hennepin County District Judge William R. Howard tossed out that charge on Thursday. He said the facts of the case didn't support the charge.

"There was no probable cause, which is kind of a minimal standard, to have this case go forward. And the court agreed," John Lundquist, Aaron Boogard's lawyer, told CBC News.

Lundquist said that prosecutors have five days to file an appeal.

"I think they were obviously not expecting this, perhaps, so we're hoping that they will realize that the court's order is legally sufficient and solid, and also that from a point of view of justice that pursuing that charge further would not be indicated."

Aaron Boogard still faces a misdemeanour charge for allegedly flushing evidence down a toilet.