San Diego Criminal Defense: Infractions, Misdemeanors, and Felonies
What is the difference between a traffic ticket and a criminal offense? Many people are surprised to learn that their traffic ticket is being handled in a criminal court of law. This is because traffic violations- even infractions- technically are criminal offenses in California.
3 Different Levels
There are three different levels of offenses in criminal courts: infractions, misdemeanors, and felonies. What distinguishes these levels of offenses from one another is their potential consequences.
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If a person is convicted of an infraction, there are various consequences the court may levy against him or her. For example, one will have to pay fines, could have their car impounded, and may even lose their license. However, the main distinction is that a judge cannot put a person in jail as a result of being convicted (found guilty) of an infraction.
A misdemeanor is defined by the potential consequence of serving up to one year in jail. In many cases jail can be avoided following a misdemeanor conviction if a person is willing to be on informal probation and comply with the terms of probation. The terms of probation vary and may be numerous depending on the conviction. Most often it includes paying a fine. Sometimes the court may require a person to complete a treatment program or counseling program, pay restitution to any victim, participate in public work service or community service, or some other condition.
If a person is unsuccessful completing these terms then the court may violate them on probation. Following a probation violation the court has the ability to reinstate probation or sentence the individual to jail time. Not all misdemeanors have a maximum consequence of one year in jail. For example, a conviction of Reckless Driving has a maximum jail sentence of 90 days, while a first-time Driving Under the Influence (DUI) or Petty Theft conviction carries a sentence of 180 days. Many offenses, including a second or third DUI, do come with a one year maximum jail sentence.
A felony is a criminal offense for which one could be sentenced to over one year in prison. Felonies vary in their seriousness and consequences. For example, both a conviction of a fourth DUI without injury within ten years and a murder conviction are felonies but obviously vary significantly in their seriousness and potential consequences. If one is convicted of a felony the sentence can range from probation with no jail time to a long prison sentence. The various permutations possible for a felony conviction depend upon the conviction, the underlying facts of the charges, and the individual’s prior criminal record.
Right to An Attorney
Another important distinction among infractions, misdemeanors, and felonies is that an individual is entitled to representation for a misdemeanor or a felony (and an attorney will be appointed to represent the person if he or she cannot afford an attorney), but this is not the case for an infraction. This is because while an infraction conviction may deprive one of property (vehicle or money) it will not deprive one of their liberty (freedom from incarceration). A misdemeanor or felony, on the other hand, very well could.
There are some offenses that can be charged as either an infraction OR a misdemeanor. Courts sometimes refer to these types of offenses as "wobblettes", because it can either "wobble up" to a misdemeanor or "wobble down" to an infraction. Examples of wobblettes are driving without a valid license (VC §12500) and possession of a fake ID while under the age of 21 (BP §25661). When writing a citation officer have discretion to circle a "M" for misdemeanor or an "I" for infraction.
It is important to remember that even if a person is appearing in traffic court for a traffic ticket that it does not mean the ticket is for an infraction- it could be for a misdemeanor. A judge can sentence a person to probation if the person enters a plea of “Guilty” to a misdemeanor. A plea of “Not Guilty” will have the ticket transferred from traffic court to a courtroom handling misdemeanor cases. This provides three significant benefits:
1) The individual will now be afforded the right to an attorney to represent him or her;
2) The attorney will have the opportunity to negotiate the charge with the District Attorney to possibly come to a favorable resolution whereas in traffic court no prosecutor is present and, therefore, there is no opportunity to negotiate the matter; and
3) If no resolution is possible there is the right to a jury trial in front of a jury of one’s peers rather than a court trial.
In fact, if a person is charged with a wobblette he or she may actually have the right to demand the allegation be charged as a misdemeanor pursuant to Penal Code sections 17(d) and 19.8(a). The decision to do this could potentially expose the person to more significant ramifications and, thus, it would be wise to consult an attorney before making this request.
There are some offenses that can be charged as a misdemeanor OR a felony. Courts refer to these offenses as "wobblers". A case may “wobble” pursuant to Penal Code section 17(b). Either the prosecutor may elect to file the charge as a misdemeanor instead of a felony or a judge may reduce the charge from a felony to a misdemeanor (17(b)(4). Often times a prosecutor may agree to reduce the charge from a felony to a misdemeanor as part of a plea agreement. A judge has several opportunities throughout the proceedings to make this reduction and can do this as early as the preliminary hearing or may even do it years after the felony conviction if probation was successfully completed.
If a person receives a written citation and is released, it is highly unlikely he or she will be charged with a felony. However, it is important to remember that traffic tickets and citations are still criminal offenses which can have significant consequences. They stay on your record, are visible to law enforcement, to prosecuting agencies, and sometimes to insurance. Therefore it is important to be deliberate and careful when dealing with a criminal charge, even if it is "just a ticket". To find out the best way to handle a criminal offense, contact Gerstenzang Law.