• Criminal Law: DUI & Misdemeanors
  • Criminal Codes
  • Attempt, Conspiracy, Aiding and Abetting
  • Misdemeanors
    • Crimes Causing Harm to Property
    • Sex Crimes
  • Alcohol & Drug-Related Traffic Offenses
  • Crime Victims' Rights
  • Resources

This chapter outlines some criminal law issues and focuses on misdemeanors, for which punishments are relatively less severe than for felonies, and on driving-under-the-influence violations. Felonies and white collar crimes are covered in the Criminal Law: Felonies & White Collar Crime Chapter. Domestic abuse and protective orders are covered in the Family Law Chapter. Criminal procedure is covered in the Process of a Lawsuit Chapter. Private causes of action that result from criminal conduct are covered in the Personal Injury Law Chapters.

Criminal law defines conduct that is prohibited by the government and the range of penalties that can be imposed for violating these prohibitions. Persons who violate criminal laws incur penalties ranging from fines to imprisonment or, in some states such as California, execution. Punishment for committing a misdemeanor may include jail time and/or a fine. Punishment for an infraction does not include jail time.

California also has laws that allow the authorities to seize property connected with the commission of a crime. For example, a person charged with violating laws connected with controlled substances must forfeit the substances as well as the raw materials used to make the drugs, vehicles and property used to further the crime, and any money or other proceeds from the sale of the controlled substances.

All crimes are defined by statutes. These statutes are collected and organized into books of rules known as criminal or penal codes. In addition to the California Penal Code, which applies only in California, the federal government has a criminal code that regulates certain crimes nationwide. Most criminal activity violates either a state law or a federal law, not both.

Every crime is defined by a list of elements. In a criminal trial, the prosecutor attempts to prove all the elements of the crime the person is accused of committing. If all elements are proven, the judge or the jury finds the person guilty of the crime. Even for minor criminal violations, however, the accused may not be found guilty unless the jury or judge finds him or her guilty "beyond a reasonable doubt."

Anyone who, with intent to commit a crime, takes a substantial step toward committing the crime may be guilty of attempt to commit a crime. Merely thinking about committing a crime, or even preparing to commit a crime, is not a attempt; there must be a substantial step. For example, if a group of teenagers talks about how easy they think it would be to walk out of a store with a pair of jeans, they have not committed a crime, nor have they committed an attempted crime. However, if they deactivate a store's alarm system so it cannot detect what passes through the doors, they probably have committed a tampering or vandalism crime as well as attempted theft. They have taken a substantial step toward the commission of the theft.

The law of conspiracy and the law of aiding and abetting are other general doctrines that apply to a wide range of offenses. Conspiracy is an agreement between two or more persons to commit a crime. For example, if three people conspire to preclude all potential renters who fall within a protected group from renting apartments in their building, and if the apartment manager actually rejects those people, all three can be charged with both conspiracy and violating the civil rights law. Even if one conspirator backs out of the conspiracy, but the other conspirators commit the crime, all conspirators may be criminally liable if the acts were reasonably foreseeable.

A person who aids or advises another in committing a crime may be guilty of aiding and abetting, and may be criminally liable for the acts of the other person, as well. Thus, if someone intentionally advises another how to commit a crime, both people are equally liable under the law.

Criminal codes penalize a variety of activities. Generally, an offense is any violation of the California Penal Code. The Penal Code divides offenses into three major categories: felonies, misdemeanors, and infractions. Felonies are crimes for which a person may be sentenced to imprisonment in the state prison or to death. Misdemeanors are lesser crimes for which a person may be sentenced to imprisonment in a jail. Infractions are not punished by imprisonment at all, and include such offenses as trespassing on land with a vehicle, being under 21 years of age and possessing alcohol, and disturbing the peace. Children under the age of 14 are not capable of committing crimes according to California law, unless the prosecutor presents clear proof that the child had knowledge of the wrongfulness of his or her action.

Under the Penal Code, misdemeanors range from driving on private land without the owner's consent to fraudulently avoiding the payment of a railroad fare to paying birth parents to adopt their child. Under the law, many crimes are misdemeanors on the first offense, but become felonies on the second offense. This means that, for example, the crime of indecent exposure is a misdemeanor the first time a person is convicted. The second or subsequent offense of indecent exposure is charged as a felony. Similarly, using a telecommunication device to avoid payment of telecommunication charges is a misdemeanor for the first offense and a felony for subsequent offenses.

As mentioned, misdemeanors usually carry a maximum punishment of a fine and less than one year of incarceration. Crimes for which a person may be punished by more than one year in jail or in prison are categorized in California as felonies.

Crimes Causing Harm to Property

Whether a crime against property is charged as a misdemeanor or a felony often depends on the value of the property taken or damaged. For example, a person who diverts funds that he or she received to pay for labor or services, by willfully failing to pay for the labor or services, commits a misdemeanor if no more than $1000 is involved. However, if $1000 or more is involved, the person commits a felony.

Other crimes involving property are misdemeanors regardless of the value of the property or the amount of money. Extortion, which is defined as either taking property with the owner's consent or using force or fear to make a public official do an official act, is a misdemeanor. Most of the trespass crimes are misdemeanors. It is unlawful in California to:

• Cut down, take, or destroy a person's timber

• Take a person's soil

• Enter upon another's land where oysters or other shellfish are growing or take the oysters or shellfish

• Tear down a fence, gate, or sign, including a highway sign or notice

• Wilfully dig up, injure, or flood a public or private highway, road, or bridge

• Build a fire on another person's land

• Enter a person's land to injure the property

• Enter a person's land for any purpose if the land is enclosed or signs are posted forbidding trespass

• Drive on another's land without consent

• Refuse to leave a public building, a hotel or motel, or private land

• Ski in a closed area

Other crimes against property constituting misdemeanors include injuring, disfiguring, or destroying public works of art, improvements, or monuments. Digging up an ornamental tree on a sidewalk, for example, constitutes unlawful behavior. Numerous provisions of the Penal Code regulate the sale and possession of aerosol paint containers capable of being used to deface property. It is a misdemeanor for a minor to purchase aerosol paint. It is a misdemeanor for anyone to sell or even furnish an aerosol container of paint to a minor. It is a misdemeanor for any person to carry an aerosol container of paint on his or her person in plain view in certain public areas, or to possess with the intent to commit graffiti or vandalism an aerosol paint can, drill bit, glass cutter, chisel, or felt tip marker.

Sex Crimes

Some actions involving sex are illegal misdemeanors under California, unless the person charged has been convicted of a previous offense or unless a child is involved, in which case they are felonies that carry more severe punishment. Prostitution is a misdemeanor, as is keeping or visiting a house of prostitution or gambling. The second offense of prostitution is a felony. Distribution of harmful material, such as obscene books or magazines, to a child also is a misdemeanor unless the person commits the offense a second time. Indecent exposure is a misdemeanor generally; indecent exposure to a child is always a felony.

In California, 50 percent of fatal traffic accidents involve a driver who was drinking. As a result, alcohol and drug-related traffic offenses, commonly known as driving under the influence (DUI) are frequently prosecuted offenses. California, like many states, has stepped up enforcement of DUI law in an effort to reverse these statistics.

If a person's blood alcohol concentration (BAC) is .08 percent or greater and the person is driving a vehicle, vessel, or even water skis, he or she is considered to be driving under the influence. Under some circumstances, it is illegal to drive with a lower BAC. Drivers of commercial vehicles will be punished for having a BAC of .04 percent. Drivers under the age of 21 face severe sanctions for driving with a BAC as low as .01 percent. Driving under the influence of drugs is illegal also, even if the drugs are legal over-the-counter or prescription drugs. Any drug that impairs a person's driving such as medicine for allergies, colds, or diets is included in the definition of drug under California's DUI law.

A person age 21 or over who is convicted of DUI the first time faces a sentence of 48 hours to six months in jail, a fine of up to $1000, and/or loss of driving privileges for six months. A subsequent DUI conviction within seven years will result in a mandatory sentence of up to a year of jail time and a fine of up to $1000. In addition, the judge may order that the violator lose his or her driver's license for up to 18 months and that the driver's vehicle be confiscated for 90 days. A person convicted of DUI may obtain a restricted license by completing an alcohol or drug treatment program. The third conviction for DUI in a seven-year period results in loss of the license for three years, a heavy fine, and three to four months in jail.

California has specific laws to address the problem of DUI among drivers under age 21. The first time a person under age 21 is convicted of DUI, he or she automatically loses driving privileges for one year. After the suspension period is complete, the driver must pay a $100 reissue fee to the Department of Motor Vehicles and must file and maintain for three years proof of financial responsibility. Additionally, if an underage driver refuses to take a preliminary alcohol screening test, the driver's license will be suspended automatically for one year. Judges are authorized to confiscate an underage driver's vehicle for up to 30 days, as well. Subsequent offenses during a seven-year period result in longer periods of license revocation.

California law specifies other alcohol or drug-related traffic offenses. A person who drives in California automatically consents to be tested for alcohol or drug impairment if there is reason to believe the person is under the influence. If a police officer arrests a person for driving under the influence, the person must have his or her blood, urine, or breath tested. If the person refuses, his or her license will be revoked. Carrying alcohol or drugs in an open container in a vehicle is prohibited. Further, some crimes unrelated to traffic violations can affect a person's driving privileges. Minors who possess firearms, skip school habitually, or commit vandalism, may be punished by having driving privileges revoked.

Crime victims have rights in the California criminal justice system. For example, under California's constitution, the Victims' Bill of Rights provides for counseling, assistance, and restitution for victims. Victims may receive crisis and follow-up counseling, emergency food or shelter, assistance, notification of employers if the crime causes time away from work, and information about the criminal justice system.

Some crime victims also have a right to compensation for the crimes committed against them. This means that a crime victim may receive compensation for certain expenses or losses, such as medical expenses or loss of support if the crime victim becomes unable to support dependents. There are requirements that must be met for a victim to get reimbursement. A victim must cooperate in the investigation and prosecution process. He or she must file a claim for compensation with the California State Board of Control, Victims of Crime Program within one year of the crime. In some cases, a court will order the defendant to pay compensation to the victim directly. This is called direct restitution.

Another option for a victim of crime is to seek compensation directly by suing the offender in civil court. This option is discussed more fully in the Process of a Lawsuit Chapter.

For information concerning DUI law or to order Immediate Driver License Suspension (in English or Spanish) or 1995 California Driver Handbook, free publications, contact the California Department of Motor Vehicles, Public Inquiry Unit M/S C 165, P.O. Box 942890, Sacramento, CA 94290-0001, (916) 657-6525.

The Crime Prevention Center of the California Attorney General's Office, Public Inquiry Unit, 1300 I Street #1101, Sacramento, CA 95814, (916) 322-3360, publishes a free booklet entitled, Crime Victims' Handbook.

Contact Mothers Against Drunk Driving (MADD), (800) GET-MADD, for information about local MADD chapters.

The State Bar of California, 555 Franklin Street, San Francisco, CA 94102-4498, (415) 561-8200, publishes a free pamphlet entitled, What Should I Know If I Am Arrested?.

The Victims of Crime Resource Center operates a help line at (800) VICTIMS (842-8467).

A crime victim can file a claim for compensation with the California State Board of Control, Victims of Crime Program, P.O. Box 3036, Sacramento, CA 95812-3036, (916) 322-4426 or (800) 777-9229.