Can I Go to Jail for a Misdemeanor in California?

A misdemeanor is generally a low-level criminal offense. 

By definition, it means you wouldn’t go to prison if you were convicted of one, but you could go to jail. 

What’s the difference between “jail” and “prison”? Jails house inmates convicted of misdemeanors and low-level felonies, as well as people who are awaiting trial. The county runs them. They’re generally smaller places and aren’t generally as harsh as prisons because the inmates housed in them are usually serving short sentences for low-level crimes.

The state runs prisons. They’re much larger and house people convicted of the most serious felony offenses like murder, armed robbery, and sex crimes. 

You should take jail just as seriously as you’d take prison. While you’ll spend less time there, the experience is not pleasant.  Your sentence will still be served alongside dangerous people.  All notions of privacy, even to shower, are non-existent.  Facilities are often highly unsanitary and overcrowded.

A few things could happen.

1. You’re arrested and booked into jail but are released from jail immediately with a court date.
2. You’re arrested and booked into a jail. You are required to appear in front of a judge to request release. The judge gives you a later court date to appear.
3. You’re arrested and booked into a jail. You post bail. You’ll later be notified of your court date.
4. You are not arrested but receive a ticket with a court date.

In any of the above scenarios, the police reports for the incident go to the district attorney for the county in which the crime occurred. They then decide whether or not to charge the case. The DA generally has one year to decide whether they will press charges or decline to prosecute a misdemeanor.

At the first or subsequent court date, the court will tell the defendant if the DA has chosen to file misdemeanor charges.  Occasionally, the DA will need more time to make the decision and a further court date can be set for you to come back.

You could face any or all of the following punishments:

• Probation
• Jail time
• Fines
• Required to pay restitution
• Protective orders
• Required to attend special classes
• Registration as a sex offender 
• Registration as a narcotics offender
• Firearm relinquishment
• Suspension or restriction of driving privileges

The specific punishments you face will depend on the misdemeanor you’re being charged with, the facts of your case, any previous criminal record you hold, and the skill of your defense attorney. 

Here’s an example. A misdemeanor sentence, let’s say for a simple battery, could be the following (depending on the facts):  one year of probation, fines and fees, 90 days in jail, restitution to the victim, a prohibition on possessing firearms for ten years, and a protective order requiring you to stay away from the victim.

The most common punishments are probation, jail, and fines.

Yes. Misdemeanors carry a potential max jail term of up to 1 year. In some cases, the maximum is only six months, but either way, jail time is a possibility.

For example, misdemeanor petty theft is punishable by a maximum jail term of six months, while misdemeanor battery against a spouse is punishable by a maximum jail time of one year.

The judge has discretion on how much jail time you serve, but some laws require you to meet certain minimums.

Not usually, but some crimes require a certain minimum amount of jail time.

For example, under California law, a DUI requires a certain amount of jail time to be served as part of the sentence. 

If no mandatory minimum exists and you are a first-time offender, the DA will sometimes offer a diversionary program. You’ll attend a class or meet other conditions in exchange for not being prosecuted.  Some district attorney offices have more robust diversionary programs than others, and the prosecutor can generally choose whether or not to offer diversion in particular cases.  Diversion programs also generally have qualifying criteria that you would have to meet, unless your attorney can convince the prosecutor to waive one or more requirements.  There is also a law allowing a court to offer its own diversion on misdemeanors, depending on the facts, even if the DA disagrees.  Courts must be persuaded, however, which is where your attorney comes in.

There is no typical amount.

The amount of jail time you serve depends on the following factors:

• Your criminal history, if any.
• The number and types of charges filed.
• The facts of the case.

The maximum time you’d spend in jail for any misdemeanor is six months to one year.  However, it is possible that multiple misdemeanors can “stack” end-to-end; this would mean that two misdemeanors, each with a one-year maximum, could get you a two-year jail sentence.

We often reach a plea bargain with the DA to ensure a shorter jail sentence than the maximum amount of time.

Some California misdemeanors do carry a mandatory minimum jail time. 

For example, if you have two or more prior convictions for being under the influence of a controlled substance, you’re caught a third time, and you have refused treatment, then the judge must order a minimum of 180 days (6 months) in jail.

A first-time DUI offender without probation must serve at least 96 hours, or four days, in jail. 

However, in most circumstances, the court can decide the jail term (up to the statutory minimum) or that no jail time should be served if they are convinced that is the appropriate outcome.

For a first-time DUI, the person is required to spend a minimum of 96 hours (4 days) in jail. Forty-eight hours of that jail time must be “continuous” unless that person’s attorney can convince the court that such a requirement would interfere with the defendant’s employment. In some cases, alternate arrangements may be made. 

However, your attorney may also convince the court to grant you probation. In that case, the court may impose 48 hours of jail in such a case but is not required to.

If you’re convicted of a second DUI within ten years of the first DUI, you can expect to spend far more time in jail. If the court refuses to grant probation, the court imposes a minimum of 90 days in jail. If your attorney successfully convinces the court to give you probation, the court must still impose a minimum of 96 hours of jail time.

The maximum penalty is up to one year in jail and up to 3 years of probation for certain crimes. The three-year maximums apply to serious misdemeanors like DUIs and domestic violence, which also have other consequences like firearm prohibitions, and required counseling.

Jail time may be reduced through credits. 

Credits for jail time work much like store credits, but instead of buying items, you reduce jail time.

As a prisoner in county jail, one earns credits for every day they serve in jail. They may also earn good conduct credits every day they demonstrate good conduct. This means for every day you serve, there generally is a potential to earn two days of credit.  You also get credit for the time you already spent in custody if you were arrested and then you either bailed out or were released on your own recognizance. 

This means a person with good conduct could spend just six months in jail on a 1-year sentence because, within six months, they’ve earned their whole year of credits.

Yes. Probation is almost always part of a misdemeanor sentence while jail may or may not be part of a misdemeanor sentence.

Misdemeanor probation is called “summary,” “informal,” or “court” probation.

Summary probation means you will not have a probation officer with whom you must check in regularly. It generally means you’ll want to avoid getting charged with new crimes. If you are charged with new crimes, the sentence of the old crime will add to the sentence of the new crime. 

In some cases, you may get “formal” probation. This means a probation officer would actively monitor you and you must check in with this person on a regular schedule. You can often agree to formal probation to dismiss charges or reduce jail time. 

For example, a client may be charged with five misdemeanors in one case.  The DA may be talked into allowing them to plead guilty to a single misdemeanor with formal probation with lower jail time instead of informal with a greater jail term. The DA may like this because they believe they are better protecting the public with the formal probation compared to the informal probation. 

In another case where a client is charged with stalking, the DA may allow them to plead to a misdemeanor harassing phone calls charge in exchange for the defendant’s agreement to remain on formal probation with minimal jail time. Harassing phone calls would otherwise only require informal probation. In this case, the DA may like this outcome also because formal probation (with less jail) was a good alternative to more jail time with informal probation.

It depends.

Domestic violence crimes, and some other violent crimes, result in a 10-year firearm ban.

Most misdemeanors don’t result in any firearms ban, but make sure you understand the terms of your sentencing and the restrictions you are under before you step out to buy one.

Learn how you might be able to get your gun rights back in California.

It depends on the conviction and the license.

If you’re a commercial truck driver and you receive a DUI, then yes, there’s a great chance you will receive a suspension of your Commercial Driver’s License (CDL). 

If you’re a doctor or a lawyer, criminal convictions, particularly for crimes potentially affecting your fitness in that profession, mean you could face discipline affecting your license because of the high ethical standards imposed by the boards overseeing those licenses. 

Some licenses, however, are not greatly affected, or affected at all, by a criminal conviction, depending on the conviction and the license.

Yes. A misdemeanor conviction shows up on your official criminal history maintained by the Department of Justice (also called your “RAP sheet”). There will be a court record of the proceedings, which are public, as well as the conviction, and it will show up on a background check. However, if you don’t commit other crimes, your record could automatically be sealed; after that, only courts and law enforcement can see it.

Yes! After a certain period of time, your record can be automatically sealed depending on the case. “Expunge” isn’t a term we use legally in California, but the result is much the same. After a certain period of time, your record in most cases won’t turn up on a casual employment or housing background check, and you won’t be required to disclose them on most applications. Some exceptions will apply.

Yes. While not all misdemeanor crimes lead to deportation, any criminal act creates a risk factor. If deportation is a risk, we recommend adding an immigration attorney to your legal team.