A misdemeanor is a crime – and it's never a good thing to have a criminal record. On the other hand, a misdemeanor is a lesser crime than a felony and generally carries a maximum penalty of a year in county jail. A person who is considering pleading guilty to a misdemeanor will want to have a thorough understanding of the possible ramifications as well as the procedures to follow to make this plea.
What Is a Misdemeanor?
In California and many other states, the laws set out three types of criminal offenses. They are often defined by the maximum punishment a person can get if she pleads guilty or is found guilty after a trial. The least serious type of offense is an infraction. Generally, these include minor misdeeds, like speeding, and are punishable only by a fine.
Misdemeanors are crimes that can be punished by up to one year in a county jail and a fine. These are less serious than felonies but can involve violence and even death. Felonies, the most serious types of offense, are crimes that can be punished by more than a year in jail. The procedures to follow to plead guilty to the different categories of crime are themselves somewhat different.
Examples of Misdemeanors
Every state legislature enacts that state's criminal code, setting out which crimes are misdemeanors and which are felonies. This means that one state's misdemeanor list may not be the same as another state's.
For example, California defines two types of misdemeanors: standard and aggravated misdemeanors. The former carries a sentence up to six months in jail, while the latter jail sentence can extend to 364 days. Both carry fines up to $1,000. Some examples of misdemeanor crimes in California include:
- Driving under the influence.
- Driving on a suspended license.
- Disorderly conduct.
- Domestic violence.
- Public intoxication.
- Petty theft.
- Reckless driving.
- Soliciting prostitution.
- Probation violation.
Being Charged With a Misdemeanor
If a person is charged with a misdemeanor driving offense, the law enforcement officer involved usually gives him a citation at the scene. However, depending on the circumstances, a person may be handed legal papers – a summons and complaint – at some point after the crime occurs.
The citation or complaint provides the person charged with most of the information he needs to understand the procedure. It includes a description of the misdemeanor offense for which he's charged, states that it is a misdemeanor and gives information about the required appearance. Usually the documents set out the date and time to appear for an initial appearance in court as well as the location of the courthouse. It may also mention that minors must appear with a parent or guardian.
Read More: How to Handle a Misdemeanor Charge
Misdemeanor Arrest Procedure
In many but not all cases, when the police issue a citation for a misdemeanor or serve a summons and complaint, they also arrest the person. They put the person in the police car and drive her to the jail.
At the jail, the person arrested may be released without any charges being filed. For example, this may happen when people are engaged in a political demonstration. On the other hand, if misdemeanor charges are filed, one of two things happen: The defendant posts bail/bond or is released on his own recognizance and told to show up at court for arraignment, or the defendant remains in jail until it is time for the arraignment, when the law enforcement officers drive her to the court.
Misdemeanor Arraignment Procedure
The arraignment is the first time a defendant appears in court to be charged with a crime. It is a hearing before a judge or other judicial officer. In most cases, many people are arraigned at the same time and the courtroom will have a number of people and some lawyers in it.
When a person's name is called, he usually must step up to the front of the courtroom. If he has an attorney, the attorney usually accompanies him. The judge advises the defendant of the charges as well as his constitutional rights. These include the right to an attorney, and the judge will mention that the court will appoint one if the defendant doesn't have enough money to hire one.
At this point, the defendant must enter a plea, stating whether he intends to fight the charge against him. He can:
- Deny guilt by pleading not guilty, in which case the case will go to trial. If he pleads not guilty, the court may allow him to go home on hisown recognizance or it may set bail and send the defendant back to jailuntil trial.
- Admit guilt by pleading guilty.
- Choose not to plead guilty but state that he does not intend to fight the charge, pleading no contest, or nolo contendere. If the defendant pleads guilty or no contest, the court enters the plea.
Why Plead No Contest?
Whether a defendant opts to plead guilty or nolo contendere, the plea is considered as and treated as a guilty plea. The court does not sentence one differently from the other. So why would anyone plead no contest?
No contest and nolo contendere are the same thing, with the Latin phrase literally meaning, "I do not wish to contest." A person entering a no contest plea will get the same criminal conviction on her record even though she is not technically admitting guilt. Before accepting a no contest plea, the court must explain to her that the plea will be treated as a guilty plea by the court and ask whether she is entering the plea freely and of her own accord.
The benefit of a no contest plea is that a guilty plea can be used against the defendant to establish guilt if someone sues her for damages out of the same conduct. For example, if the defendant pleads guilty to reckless driving in an accident in which a pedestrian was hurt, the pedestrian has no additional burden of proving that the defendant was at fault. A no contest plea cannot be used as an admission of guilt.
Sentencing for a Misdemeanor
After a guilty or nolo contendere plea, the defendant goes in for a sentencing hearing. This may or may not be in the same courtroom as the arraignment. The court considers the case and imposes a sentence.
The court might give a defendant misdemeanor probation for a first offense misdemeanor violation. This is also called “summary,” or “informal” probation, typically requiring the defendant to participate in counseling or treatment programs, participate in community service and paying victim restitution.
In some states, like California, it is possible for a defendant to get a misdemeanor conviction expunged from his record although some sex crimes cannot be expunged. Expungement means that if a potential landlord or employer asks the defendant about criminal convictions, he is not required to mention the expunged offense. To be eligible, the defendant must successfully complete probation and not be charged with any other criminal offenses. It is best to work with an attorney to seek expungement.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.