Traffic Misdemeanor or Infraction? The Choice in Penal Code Section 17(d)

You may have heard the term “wobbler,” which is the nickname given to laws in California that can be charged as either as felonies or misdemeanors.But did you know there is also such a thing as a “wobblette?”  A “wobblette” is a violation that can be charged either as a misdemeanor or an infraction.

In California, a misdemeanor is an offense that can be punished with jail time or a fine, or both. An infraction is a crime that can only be punished by a fine, usually not more than $250 unless the specific statute specifies a greater amount.

California Penal Code Section 17(d)

Though the punishment is greater for misdemeanors, there is a law in the California Penal Code that gives you, as the defendant, the option to have your case tried as a misdemeanor instead of an infraction. ¹ California Penal Code section 17(d) states:

A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when:

1. The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or;
2. The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.

Section 19.8 lists the traffic offenses that are “wobblettes.” They include:

• Exhibition of Speed (Vehicle Code section 23109)
• Selling a Product to Obscure License Plate (Vehicle Code section 5201.1)
• Driving Without a License (Vehicle Code section 12500)
• Driving with a Suspended/Revoked License (Vehicle Code section 14601.1)
• Offering for Sale, Selling, or Installing Non-Regulation Exhaust System Components (Vehicle Code section 27150.1)
• Failure to Appear on a Traffic Violation (Vehicle Code section 40508)

Why You Have a Choice between Misdemeanors and Infractions

So, why does PC section 17(d) require your consent to proceed at a lower level of punishment? The answer lies in PC section 19.6. California is allowed to alter the process by which you can be convicted for an infraction because the punishment is under the minimum that is required to trigger certain constitutional rights. PC section 19.6 states that a person charged with an infraction is not entitled to a trial in front of a jury, nor are they required to be given a public defender or court-appointed counsel for the proceedings (unless you are in custody).

Misdemeanor or Infraction: The Pros and Cons of Each

Generally, the option to proceed as an infraction is a welcome one. There is no risk of jail time, and the violation does not have to be disclosed to potential employers because an infraction will not appear on your criminal record. Basically, if you are convicted of an infraction, you pay your fine, and the matter ends.

However, what if you were innocent of the violation? What if you feel like you were treated unfairly? While you could argue these points to a judge, he or she may have heard those same arguments from hundreds of other people like you, and might not respond to them the way a jury would. You also might want the advice of counsel, but cannot afford to have a lawyer. An infraction charge denies you that right. Or, perhaps you have already served jail time on another related charge, and want the time applied to your punishment instead of having to pay another fine. An infraction would not allow you to have jail time as part of your sentence, even if it is in the form of credit for time served.

If you were previously charged with a wobblette, but were not informed that you had a choice under PC 17(d), you also might be able to have your case retried. ²

Contact the Attorneys at Wallin & Klarich to Fight Your Traffic Ticket

If you have been charged with a traffic violation, and need to make the choice as to whether your case should be tried as an infraction or misdemeanor, you should seek the advice of an experienced and aggressive traffic violation attorney. Wallin & Klarich has been successfully defending people accused of Vehicle Code violations for over 40 years. We can help you determine the best path for you to take. Contact us today for a free, no obligation phone consultation and let us help you.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich traffic ticket attorney available near you, no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

<sup>1. [See, People v. Smith (2012) 205 Cal.App.4th Supp. 1, 140 Cal.Rptr.3d 379.]↩
2. [Id.]↩</sup>