California law now provides a diversion option for many individuals charged with qualifying misdemeanor offenses. This law gives Superior Court judges the authority to order diversion, even when the District Attorney’s office objects.

Previously, diversion decisions were often controlled by the prosecutor’s office. The current law allows judges throughout California to consider diversion and determine whether it is appropriate based on the facts of the case.

How Does Misdemeanor Diversion Work?

Diversion is an alternative to traditional criminal prosecution. Instead of proceeding directly toward trial, the court may postpone the case and require the defendant to complete specific terms and conditions.

An infraction is a minor criminal charge and does not carry any incarceration or jail time. There is also no probation for infractions and the only punishment is financial. However, the court can order severe restrictions such as a driver’s license suspension, or loss of a fishing and hunting license. This means, if you are charged with an infraction, the punishment you receive will not include jail time.

The reason an infraction is not considered “criminal” is because it does not appear on your Department Of Justice criminal records. Infractions do appear on your driving record, court record, local police agency records but generally are not reflected on your DOJ records because they are not considered as serious as a misdemeanor or a felony.

Common infractions are seatbelt violations, simple speeding tickets, littering citations, running a red light, and failure to stop properly at a stop sign. Many times traffic school is offered for certain infractions considered a moving violation- infractions that carry a point on your driving record. Certain charges like disturbing the peace or trespassing can be charged either as an infraction or a misdemeanor depending on the circumstances.

Because of the non-criminal nature of infraction charges, the accused does not have the right to a jury trial but does have the right to face the allegations against him/her by way of a bench trial (no jury, the judge will decide the facts).

Certain charges, include provisions in the Penal Code that allow them to be charged either as a misdemeanor or a felony, these are considered a wobbler and depending on the surrounding circumstances of each case, the District Attorney decides what type of charge to file. Notably, a skillful attorney can many times reduce a wobbler charged as a felony to a misdemeanor and may also be able to avoid a felony filing all together if engaged early on in the prosecution.

Many misdemeanors carry mandatory minimum punishments.  For example, the crime of being under the influence of narcotics (Health & Safety Code Section 11550) carries a 90 day minimum jail confinement for a first offense, and a third DUI carries a 120 day jail minimum. The legislature has taken discretion from the courts and attorneys to negotiate below certain minimum punishments on many crimes, particularly for second time and greater offenses.

Other Consequences of a Misdemeanor Conviction

• For non-citizens, a conviction may impact one’s visa, immigration status, immigration applications, entry into this county, and can result in deportation.  In all pleas, a defendant initials and signs a form whereby he/she waives certain rights and indicates agreement to a negotiated sentence.
• If you are convicted of any drug offense, the offense of a minor in possession of alcohol, or convictions which generate points on your driving record (principally DUI or driving on a suspended license), your conviction may result in the suspension of your Driver’s License.
• You can also lose your right to bear arms.  If you are convicted of any offense involving violence, you may be barred from possessing firearms for ten (10) years.  If you are convicted of certain sex or drug offenses, you may be required to register with your local police as a sex or narcotics offender indefinitely.  The law enables individuals and entities outside the criminal justice system to access sex offender registration information.

Your Criminal Record or Rap Sheet

California Offender Record Information, “CORI”, also know as “Rap Sheets”, are documents maintained in a database by the California Department of Justice.  Under Penal Code Section 13125, once you are arrested, a record of that arrest and the subsequent activities in the resulting criminal prosecution are recorded and maintained on your “rap sheet”.  This information is available only to local and state law enforcement personnel, courts, certain public entities, prosecutors and federal law enforcement agencies.  Even if your case results in a dismissal or acquittal, this information is preserved indefinitely.  In other words, even if all charges are dropped, this does not cleanse your record of the notations showing allegations, arrest and prosecution.

A major role of the defense attorney is to explore and recommend alternatives to incarceration, where appropriate.  These “sentencing alternatives”include in-patient and outpatient treatment programs, counseling, volunteer and work programs, formal probation, fines, classes and weekend confinement.  These alternatives can be utilized in lieu of prison, sometimes facilitating settlement.  However, every case is unique, and sentencing alternatives are not appropriate or acceptable in every case.  Many judges are very reluctant to employ sentencing alternatives in felony cases.