Criminal and Constitutional Defense

Crimes are charged by the prosecutor either as felonies, misdemeanors or infractions. Before you enter a plea to any offense, you should have your lawyer examine the complaint or indictment to make sure that you have been legally charged. You should also have your lawyer review all police reports and other evidence to make certain that it is not tainted by some violation of your constitutional rights. If such a violation of constitutional rights has occurred, it is possible to have the evidence, including any incriminating statements you made, thrown out.

The most serious offenses are charged as felonies and conviction may mean a term of incarceration in the state prison. Except in rare cases, a first-time felony conviction may also result in some local jail time (1 year or less), followed by probation for 3 to 5 years.

Misdemeanors are the next level of offenses, and include such things as Driving Under the Influence of alcohol or drugs, petty theft, possession of some drugs, simple Assault, Disturbing the Peace, etc. A conviction on a misdemeanor may result in a term of up to 1 year in the county jail, and/or up to 3 years of probation.

"Wobblers" are offenses that my either be a felony or misdemeanor, depending on the sentence imposed. If the statute under which you are charged says that an offense is punishable by either a term in state prison, or up to 1 year in county jail, it is a "wobbler" and whether it is a felony or misdemeanor will be determined by whether you are sent to state prison (felony), or sent to county jail, with or without probation (misdemeanors.) If the sentence was probation with or without some county jail time, it is possible to ask the court to declare that an offense is, and was for all purposes, a misdemeanor even if it was charged as a felony and you were convicted of a felony.

Infractions the lowest level of criminal offense, and include such things as Public Intoxication, Driving too Fast (Speeding), and Disturbing the Peace. Because there is no jail time possible upon conviction of an infraction, defendants in these cases are not entitled to the services of the Public Defender, even if the defendant is indigent.

"Wobblettes" are offenses that may be either a misdemeanor, or infraction. There is no procedure to reduce a misdemeanor conviction to an infraction, as in the case of reducing a felony to a misdemeanor, but it is often possible to convince the prosecutor that pleading guilty to, for example, Disturbing the Peace as an infraction, instead of as a misdemeanor, is the just and proper way to dispose of the case.