Home / Overview


What is the difference between a misdemeanor and a felony offense?

Misdemeanors: Misdemeanors are criminal offenses that can be punished by a maximum of 1 year in the county jail, although a great number of misdemeanor offenses provide for a maximum punishment of 6 months. Examples of misdemeanor offenses are: drunk driving without injury; hit and run without injury; driving with a suspended license; driving without a license; domestic violence without injury; assault; battery; grand theft of value under $400.00; burglary; prostitution; among many other offenses. Some of the enumerated misdemeanor offenses can also be charged as felonies depending on the seriousness of the offense.

Felonies: Felonies are criminal offenses that can be punished by incarceration in State Prison. Some felonies are known as “wobblers.” A “wobbler” is a felony offense that can also be charged, alternatively, as a misdemeanor. Examples of felony offenses are the following: drunk driving with injury; assault with a deadly weapon; robbery; burglary; embezzlement; domestic violence with injury; drug sales and/or transportation; possession of controlled substance; among many other offenses.

What is a “wobbler”?

A “wobbler” is a felony charge which can also be charged as a “misdemeanor.” It is not uncommon for felony charges to be eventually reduced to misdemeanors if certain conditions are met.  If the defendant has no prior criminal record, and the felony charges are relatively minor (non-serious), then the court may reduce the charges to misdemeanors even over the prosecution’s objection. This is done by way of a Penal Code Section 17 motion.

What is a “strike felony”?

When an individual who has at least one prior conviction of a crime defined as a “violent felony” in Penal Code Section 667.5 (c), or as a “serious felony” in Penal Code Section 1192.7 (c), is charged with any new felony offense, the prior conviction or convictions can be alleged as a “strike” under the Three Strikes law, potentially resulting in denial of probation, and the imposition of very long sentences. Examples of “strike felonies” are the following: Assault with a deadly weapon -felony – with great bodily injury; robbery; child sexual molestation; among many others.

What is a jury trial?

A person who is arrested and charged with committing a crime is presumed as a matter of law to be “not guilty” of the criminal charge. That person has a right to have twelve people from the community come to court to hear the evidence presented against him or her, and determine whether he or she is guilty. This process is known as a “jury trial.”  A defendant in a criminal case is also entitled to have a “court trial”, that is, a trial without a jury where the judge makes the final determination as to defendant’s guilt. The prosecutor (district attorney) must prove defendant’s guilt “beyond a reasonable doubt.” This is a very high standard of proof.

What rights do I have if I am arrested and charged with a criminal offense?

1) Right to reasonable bail:  Our Federal and State Constitution provides that in most cases, not all, a defendant in a criminal case has a right to “reasonable bail.”  This means that a person who has been arrested and is in custody, can deposit a sum of money with the court as collateral (security) for the person’s return to court upon release from custody.  Typically, bail is posted by “bail bond agents” who charge a fee (usually 10% of the bail amount) to post bail on behalf of a criminal defendant.  Bail bond agents can be found in the Yellow Pages under “Bail.”  On many occasions, especially if a defendant does not have an extensive criminal record, a defendant is released on his or her “own recognizance” or “O.R. Release” (on his own promise to appear in court), without having to give money as security.  A court may impose conditions to a person released on “O.R.”, such as participating in counseling, reporting to “O.R. Officers” on a regular basis, and/or completing substance abuse programs;

2) Right to be presumed “not guilty”: A person who is arrested is presumed by law to be “not guilty” of the charges.
3) Right to be represented by a lawyer;
4) Right against self-incrimination (also known as the right to “remain silent”) — no one can compel (force) a criminal defendant to testify;
5) Right to a speedy preliminary examination (felony cases), and jury or court trial;
6) Right to confront (cross-examine in court) witnesses brought against the defendant;
7) Right to produce (bring) witnesses to testify in the defendant’s favor;
8) Right to present evidence at trial.

What happens if I can’t afford to hire my own lawyer?

The court will appoint a “public defender” (a lawyer appointed by the court to represent individuals with low or no income). Normally, indigent defendants request the assistance of the public defender’s office at the first court hearing, also known as the “arraignment.” The office of the public defender typically interviews the defendant in order to determine whether he or she is financially eligible for its assistance.

Who is suing me in a criminal case?

The State of California through its subdivisions (counties). Each county has a “District Attorney” who’s job is to prosecute individuals accused of committing a criminal offense. Many people mistakenly think that the alleged victim is the person suing; this is not true in a criminal case. The alleged victim is merely a witness, and has no power to “drop charges.” A victim of a crime, however, can file an independent “civil action” to recover damages.

If I hire a lawyer do I have to be present in court?

In most misdemeanor cases, the lawyer can appear in court without the client being present. The exception is domestic violence cases; in this type of case the defendant must be present at all stages of the proceeding.  In felony cases, the defendant must appear with a lawyer at all legal proceedings unless the defendant files a request not to be present pursuant to Penal Code Section 977.

What happens in court?

The first court date in a criminal case is known as the “arraignment.” At this stage, the court may set bail; appoint an attorney if necessary; and “enter a plea.” Entering a “plea” means that the court will ask the defendant whether his or her plea is “not guilty”, “guilty” or “no contest”, or “not guilty by reason of insanity.” Most lawyers typically enter a “not guilty” plea at the arraignment.  After a “not guilty plea” the court will set future court dates. If the case is a misdemeanor, the second court date will be a “pre-trial” conference. At this conference, which is held in court, the defense lawyer and the prosecutor, with the assistance of the court, will attempt to settle the case.  Many people are familiar with the term “plea bargain”, meaning “negotiating the nature of the charges” and/or the extent of punishment. “Pleas bargaining” takes place at this stage. It is common for defense lawyers to contact district attorneys before the “pre-trial” conference in an attempt to settle the case before the actual “pre-trial” date.  If the case does not settle, then the court will set a date for jury trial.  At trial, the prosecutor (also known as D.A., or deputy D.A.) must prove the case against the defendant “beyond a reasonable doubt.”This is known as the “standard of proof” in a criminal case. The verdict must be unanimous. If the jurors do not agree on the verdict, then there is a “hung jury.” If this happens, the defendant may be re-tried. If the case is a felony, after the arraignment, the court will set a date for a “preliminary examination.”A “preliminary examination” is a judicial proceeding where the court, after hearing evidence introduced by the district attorney (typically testimony by police officers), determines whether or not there is “probable cause” (sufficient cause) to believe that the defendant (the person accused of committing the crime) has committed a crime. If the court finds that there is sufficient evidence, then the defendant will be “held over” for trial (ordered to proceed with the case). A finding of “probable cause” does not mean that the defendant is guilty, it just means that there is cause to proceed with the case.  If the court finds that there is insufficient evidence to proceed against the defendant, and this finding is based on “fact”, then the court may dismiss the case. If the court made no “factual” findings, but dismissed the case on “legal grounds”, the prosecution may refile a new complaint or seek a grand jury indictment. After preliminary examination, the district attorney will file an accusatory document known as an “information”, the defendant will be re-arraigned on the information, and a date is set for trial.

What is “discovery”?

“Discovery” is the process by which lawyers provide relevant and legally permissible information about the case to the opposing lawyer. Prosecutors must provide defendants or their lawyers with all relevant evidence in their possession, including “exculpatory” evidence (evidence tending to prove that the defendant may not be guilty of the crime). Examples of evidence which must be disclosed to the defense include : police reports; photos; statement of witnesses; laboratory reports; fingerprint evidence; physical evidence; names of experts; among other items.

If I am not a United States Citizen, and I’m convicted of a crime, can I be deported?

Conviction of a crime, whether felony or misdemeanor, may result in deportation or exclusion from admission to the United States, or denial of naturalization.   A non-citizen charged with a criminal offense should consult with an immigration attorney to determine which charges could result in deportation. Conviction of certain crimes, such as crimes not involving “moral turpitude”, or classified by the Department of Homeland Security (formerly INS -Immigration and Naturalization Service) as not constituting “aggravated felonies” may not result in deportation. Please note that “moral turpitude” and “aggravated felony” are terms of art which have a specific “immigration law” meaning. You should consult with an immigration lawyer prior to finalizing your case.

If I am convicted of a criminal offense, are there any jail alternatives?

Yes. Santa Clara County offers jail alternative programs depending on the seriousness of the offense and the defendant’s record. Common programs are the following: 1. “Sheriff’s Work Program” (also known as the “weekend work program” — this is in fact a misnomer because a defendant may choose to-work any day of the week — from 8:00 a.m. to 4:30 p.m., and then the defendant goes home; 2. “In-Camp Program” –– the defendant is incarcerated from Friday at 6:00 p.m.to Sunday at 6:00 p.m. and every consecutive week until completion of sentence. The “advantage” of this program is that the defendant gets 3 full days of credit; 3. Public Service Program: This program is similar to the “Sheriff’s Work Program — the difference is that defendant “works” every day until completion of sentence 4. “Work-Furlough Program — Defendant must be employed. The defendant is released during working hours and returns to a facility, presently located in Mountain View, California, to spend the night; 5. Electronic Monitoring Program (EMP):  this is the equivalent of “home arrest”.  The defendant is electronically monitored by way of an electronic bracelet placed around the individual’s ankle. Defendant may be allowed to work and-or attend medical appointments, but must return home upon finishing work.

If I am convicted and receive a jail sentence, do I get any “credits”?

Yes. Currently county jail inmates get approximately 1/2 off their sentence (example: if defendant is sentenced to 90 days in the county jail, he or she will be released in approximately 45 days.  Inmates also get credit for time already served (example: if defendant is sentenced to 90 days and has been in custody for 15 days, he or she gets “credit” (reduction of sentence) for those 15 days plus approximately 15 extra days for “good behavior” pursuant to Penal Code 4019).  NOTE:  RECENT LEGISLATION HAS AMENDED PC 4019, so that county inmates get 50% credit for most offenses (but not all). State prison inmates (those convicted of felonies who have not been granted probation) generally get 50% credit for “good behavior”, from the time they begin a work assignment (example: defendant is sentenced to 16 months in the state prison — he will actually serve approximately 8 months and will then be released and placed on parole from 3 to 5 years. A state prison inmate will also get credit for time already served while the case was pending. State prison inmates who have been convicted of a “strike” (serious felony) generally must serve 85% of their sentence.

When can I be charged with “Drunk Driving” (DUI)?

A person can be arrested, charged and found guilty of “drunk driving” if either: 1) that person was “under the influence of alcohol” at the time of driving, or 2) was driving with a blood alcohol concentration (BAC) of .08 grams per 100 milliliters of blood or more, regardless of whether that person is “under the influence.” For purposes of DUI law, a person is “under the influence” of an alcoholic beverage or drug, when as a result of drinking or consuming a drug, his physical or mental abilities are impaired to such a degree that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances. When arrested for DUI, a defendant must defend the case against the court, and the Department of Motor Vehicles (DMV).  However, in order to present a defense with the DMV, a defendant must request a hearing (also known as an “APS” — “Administrative Per Se”) within 10 days of arrest. Otherwise, the DMV will not hear the case, and the license will be suspended.

What is the purpose of requesting a DMV hearing within 10 days of the arrest?

When arrested for DUI, a defendant must defend the case against the court, and the Department of Motor Vehicles (DMV). However, in order to present a defense with the DMV, a defendant must request a hearing (also known as an “APS” — “Administrative Per Se” ) within 10 days of arrest. Otherwise, the DMV will not hear the case, and the license will be suspended.

If I want to request a DMV hearing for a DUI arrest in Santa Clara County, whom do I contact?

If you hire a lawyer within 10 days of the arrest, the lawyer will request the hearing for you. Otherwise, you may request the hearing yourself by calling the “Driver Safety Office” of the DMV at the following number: 408-298-6204, or by faxing a request to: 408-530-8748. The “Driver Safety Office is located at: 90 Great Oaks Blvd, Suite 104, San Jose, California. The information needed to request the hearing is the following: name of arrestee; driver license number; date of arrest; and law enforcement agency that made the arrest (e.g., San Jose Police Department).

Can I drive after the DUI arrest?

During the arrest, the arresting officer confiscates the subject’s driver license and issues a pink colored document entitled “Administrative Per Se Suspension / Revocation Order and Temporary Driver License”. This entitles the arrested person to drive for a period of 30 days. If that person requests a timely hearing with the DMV (within 10 days of the arrest) the DMV will issue another paper license allowing the arrested person to continue driving past the 30 days pending the outcome of the hearing.

If I am convicted of a first offense of “drunk driving”, can I obtain a restricted license?

Yes. After 30 days of total suspension, a person convicted of drunk driving may obtain a restricted license to drive to work, during the course of employment, and to the “first offender DUI class.” The restriction will last for 5 additional months, for a total of 6 months (counting the 30 days of total suspension). In order to obtain this restriction, a person must obtain the following:  1. SR-22 form from the person’s insurance company; 2. Proof of enrollment in DUI class; 3. pay the DMV an issuance fee of $125.00.

Will I go to jail if I am convicted of a first DUI offense?

In Santa Clara County, a typical sentence for a drunk driving offense is the following: 3 years court (informal) probation. As a condition of probation, the person is sentenced to serve between 6-10 days in the county jail (most people elect to participate in the “Sheriff’s Work Program” which involves cleaning roads or freeways from 8:00 a.m. to 4:30 p.m. at least once per week instead of “behind the bars” jail time); payment of a fine, penalties and assessments totaling approximately $1,600.00, and participation in a 3- or 6-month (depending on blood alcohol level) DUI class.

What is a “wet reckless” charge?

A “wet reckless” is an alternative charge to a drunk driving conviction. In Santa Clara County, a subject with a BAC of .09 or less, with no prior convictions, may be offered a “wet reckless.” The difference between a “wet reckless” and a DUI is that there is no “jail time” in most cases, and the length of the DUI class can be shortened to 12 hours instead of the 3 month period. However, it is still a misdemeanor conviction, and it counts as a prior conviction if the person is arrested again within a period of 10 years from the date of conviction.

What is “DEJ” and “Prop. 36”?

For certain drug-related offenses, such as “possession of a controlled substance” — Health and Safety Code Section 11377, whether a felony or misdemeanor, or Health and Safety Code 11550 “under the influence of a controlled substance”,  the arrested person may be eligible to participate in drug treatment (DEJ — deferred entry of judgment or Prop. 36) under the supervision of the court. Upon successful completion of the program, the case against the defendant is dismissed.

1625 The Alameda, Suite 800
San Jose, California 95126

Criminal Defense Lawyer / Santa Clara County (San Jose, Palo Alto, Morgan Hill) / San Mateo County (Redwood City, San Mateo, South San Francisco)
Alameda County ( Oakland, Fremont, Pleasanton),  City and County of San Francisco


Contact Form

We will respond to your inquiry in a timely fashion. Thank you.

Quick Contact Form