Certain offenses, depending upon the circumstances, may be charged as an infraction or a misdemeanor. The most common examples of this are petty theft (Penal Code §§ 484 or 490.1), disturbing the peace (Penal Code § 415) and trespassing (Penal Code § 602).
As criminal defense attorneys, we always consider whether the facts of the case allow a misdemeanor to be lowered to an infraction. In discussing the facts of the case with this in mind, our clients often then ask, “what is the difference between a misdemeanor and an infraction?"
The differences are significant. An infraction is not considered a criminal charge. Consequently, a plea of no contest to it does not appear on one’s Department of Justice record. In contrast, a plea to a misdemeanor, which may be punished by up to a year in jail and fines of up to $1,000, does. An infraction, moreover, is only punishable by fines and no probation attaches either.
In certain cases, a plea may allow a defendant to “earn" an infraction by first completing classes or community service and perhaps other conditions. For example, a prosecutor may stipulate that if our client performs a certain amount of community service and completes an online shoplifting prevention charge, the prosecutor will amend the complaint for misdemeanor petty theft to add an alleged violation of Penal Code § 490.1, an infraction, to which the client may plead instead of to a misdemeanor. Once the defendant shows proof of completing such prerequisites and pleads to the infraction, the district attorney or city prosecutor will, under Penal Code § 1385 (“in the interest of justice"), ask the judge to dismiss the misdemeanor charge.
A misdemeanor, as the above discussion suggests, is a more serious crime than an infraction. Summary Probation almost always attaches to a plea bargain entered into by a defendant to a misdemeanor. Certain misdemeanors carry mandatory jail terms such as a second time DUI (Vehicle Code § 23152) or a DUI with injuries (Vehicle Code § 23153).
With any misdemeanor, there is a right to a jury trial and an attorney. In an infraction, there is no right to a jury trial (or even a Sixth Amendment right to a speedy trial) or an attorney. Therefore, if the prosecution does not arraign you on an infraction for several years, you cannot object on grounds that your Sixth Amendment rights to a speedy trial were violated.
Infractions typically resolve quickly, i.e. in one to three court appearances. This is most common with traffic violations, parking violations, seat belt violations and littering. Misdemeanor, on the other hand, can take several months, or even a year, to resolve – even without trial.
A conviction for a misdemeanor can carry with it immigration consequences and may require a defendant to register as a sex or narcotic offender. A conviction for certain misdemeanors can also affect a person’s ability to possess or own firearms for up to ten tears after the conviction. It is therefore very important to have a skilled and experienced attorney who is familiar with the local prosecutors to negotiate a plea bargain that avoids such consequences.
This article was written by Greg Hill. He has handled hundreds of DUI’s and other crimes, including drug offenses, murder, sex offenses and domestic violence, all over the state of California. He is an attorney in Torrance, California and a former Marine Officer. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Visit his firm’s website at http://www.greghillassociates.com or his firm’s Facebook page at http://www.facebook.com/pages/greg-hill-associates/198954460153651.
Criminal Defense Attorney