If you have been arrested or believe that you are under suspicion in a criminal case, it’s helpful to know a few basic issues and terms. Here is some basic information to help you out:
In criminal law, the government may charge a person with a criminal offense and the assigned prosecutor must prove the case beyond a reasonable doubt. Generally, the District Attorney’s office (DA) and their prosecuting attorneys represent the People of the State of California and will issue a criminal complaint against the person charged with the crime, known as the defendant. In San Diego County, the DA will issue felony complaints but misdemeanor complaints within the limits of the City of San Diego will be handled by the City Attorney’s office. The DA’s Office will issue misdemeanor complaints elsewhere in the County.
A person charged in a criminal case is presumed innocent unless and until proven guilty. The prosecuting agency bears the burden of proving guilt beyond a reasonable doubt, which is defined in publicly available jury instructions. Not every person arrested will be charged with a crime and it is up to the prosecuting agency to decide if there is compelling evidence to issue a criminal complaint. Internal prosecution policies will be consulted in conjunction with a review of the evidence to determine if charges will be issued. Usually, the DA will decide if there is sufficient evidence to prove guilt beyond a reasonable doubt. This is higher than the standard for arrest by a police officer, which is probable cause.
Infraction
Criminal offenses are generally categorized based on the punishment that may be imposed for the offense, and only some offenses require top criminal defense attorneys. The lowest levels are called infractions, sometimes called minor or petty offenses, which are punishable by a fine or summary probation and do not necessitate hiring a criminal law attorney so long as you are not facing actual custody, in which case a lawyer is constitutionally required. Summary probation is informal and does not require reporting to the Probation Department. Most traffic tickets and numerous other citations are infractions.
Misdemeanor
These are offenses generally punishable with incarceration in local custody (jail) for up to 365 days and fines up to $1,000, not including attorney fees and court costs/assessments. Punishment may include probation, either summary (to the court) or formal (reporting to a probation officer), and other court ordered programs such as custody or volunteer work, Alcoholics Anonymous (AA) classes, Narcotics Anonymous (NA) classes, anger management classes, stay away/restraining orders, restitution, etc. Common crimes such as prostitution, petty theft, vandalism, first offense DUI/DWI, and domestic violence may be charged as misdemeanors.
Felony
This is a crime that carries a possible punishment of incarceration in a state prison (or, in California, local jail) for more than one year up to life in prison or even the death penalty. When charged with a felony, it is critical to consult with a criminal defense attorney. Serious crimes, such as rape, robbery, possession of drugs for sale, second or third offenses of drunk driving, arson, kidnapping and murder are classified as felonies. Felony convictions, whether they result in a prison term, may be chargeable as enhancements when new offenses are committed. Additionally, a felony may be classified as violent or serious, in which case it might qualify as a “strike” under the “3 Strikes” sentence enhancement laws.
How to Clear Criminal Records in California
- Motion to Dismiss: This is a formal request for a court to dismiss the case, which could apply to a settlement between parties, a voluntary withdrawal of the complaint, or issues with jurisdiction.
- Expunge Criminal Record: An expungement occurs when a judge grants the individual the right to have their conviction set aside and limits their use in future proceedings. Your record is not sealed, and the public can learn that your charges were dismissed pursuant to the statute.
- Petition for Declaration of Factual Innocence: In contrast to an expungement, if a Judge finds, after a hearing, that your arrest was conducted without probable cause, he or she can seal your records and direct they be scrubbed from state or federal repositories.
- Petition for Certificate of Rehabilitation and Pardon: A pardon (or sentence commutation) is an act of grace from the Executive Branch. Before asking the Governor for a pardon, the interested party must seek a Certificate of Rehabilitation from the court. The granting of a pardon restores the individual’s civil and political rights. The issuance of a Certificate of Rehabilitation merely entitles you to represent that in the eyes of the Court you have redeemed yourself.
For more key issues in criminal law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have a criminal law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at www.sdcba.org/ineedalawyer or by calling 1 (800) 464-1529.