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What Rights Does Defendant Have in an Infraction?
It may come as a surprise to the reader of this article that the rights guaranteed to a person facing an infraction are significantly less than those guaranteed to a person facing a misdemeanor or a felony. One of the principal reasons for this is that in an infraction, one cannot be punished with time in jail as in a misdemeanor or prison as in a felony.
As in a felony and a misdemeanor, a person facing an infraction has the right to know the charges alleged against that person.
In a Nutshell: One facing an infraction does not face the prospect of jail (or prison) and the judge cannot place one in violation of an infraction on probation. One also has the right to an attorney, but the state does not provide one for defendant, i.e., through the public defender’s office.
A person charged with an infraction-level crime also has the right to have the assistance of an attorney, however, California will not provide a public defender even if one is financially qualified for such service. Instead, one has the right to hire private counsel (for example, our firm or any other private criminal defense attorney or law firm) and defendant has the right to request a short continuance in proceedings to have time to retain such a person.
One also has the right to represent oneself in an infraction, although the judge may pose questions to you to ensure you are aware of the dangers and disadvantages of representing oneself.
One also has the right to enter a plea of guilty, not guilty, no contest (subject to court approval), former judgment / once in jeopardy and not guilty by reason of insanity. If one enters a not guilty plea, the case will be set for a court trial. There are no jury trials in infractions. One has the right to trial within 45 days unless one waives this right and allows trial to proceed outside the 45-day period or the judge finds good cause to allow trial beyond the 45-day deadline.
Long Beach CourthouseAs mentioned above, there are no jury trials for infractions. So, trials are significantly shorter than in misdemeanor matters because there are no jury instructions to agree upon, no voir dire that can take days and generally, there is no prosecutor present. The judge generally lets a police officer testify to what he or she observed.
However, defendant can file and request an order suppressing evidence in an infraction. Defendant can also prepare and file a trial brief identifying the key issues in the case and presenting the law on these issues for the judge or commissioner. Defendant may also present documents, i.e., traffic surveys of the road in question (i.e., in a speeding ticket) and present witnesses (i.e., a passenger to corroborate a defense that defendant was not speeding and that the traffic stop was improper).
The trial takes place before a judge or a commissioner. Defendant has the right to have an attorney present during all proceedings. Defendant also has the right to 1) confront and cross-examine witnesses, i.e., police officers; 2) subpoena witnesses and compel them to testify; 3) the right to testify at trial; and 4) the right to remain silent. If you do remain silent, your silence cannot be used against you.
Defendant has the right to appeal from the final judgement of conviction or from any order made after judgement.
After a conviction in an infraction, one can have the conviction “expunged” under Penal Code § 1203.4a(a) a year after the conviction. This became a new right in about 2012. In the petition, the court must find that defendant has lived “an honest and upright life” during that year, as there is no probation in an infraction like in a misdemeanor or felony wherein defendant would be obligated to obey all laws and maintain a job or training / education. Technically, the fee for expungement of an infraction in Los Angeles County is $60 because there was no probation, but most clerks charge $120.
We present this this article because many marijuana offenses are now infractions and involve illegal searches and seizures. Many people do not want even a conviction for an infraction for a drug offense or a Vehicle Code violation, which may involve excessive points on their driver’s license, leading to its suspension. Therefore, the more one knows about infractions, the more confident and comfortable one can be in court facing such a charge or charges.
For more information about infraction issues, please click on the following articles:
