Misdemeanors and Jail Time: What's the Risk?

Yes. Yes, you can.

In the common law system of the United States, misdemeanor offenses are part of statutory criminal codes; in terms of severity, they fall between administrative offenses and felonies, which mean that they may be punished with a term of incarceration in addition to probation and monetary fines. Even though they are considered to be criminal acts, not all misdemeanors will land defendants in jail. For the most part, the maximum sentences associated with misdemeanors involve spending less than a year in a county jail, but the reality is that judicial systems in many jurisdictions prefer not to impose this type of punishment. When it comes to misdemeanors, court systems observe statutes, levels, factors, sentencing guidelines, and rules of procedure, jury findings, prosecutorial recommendations, and requests from defendants prior to dictating a jail sentence. Even when statutes call for a term of incarceration, judges can choose to reduce or suspend sentences, thereby keeping defendants out of jail. Relatively minor offenses such as shoplifting and disorderly conduct do not generally convey jail sentences. Even if there are aggravating factors that elevate the sentencing guidelines to a maximum of 90 days in a county jail, chances are that the incarceration term can be suspended because of external mitigating factors.

The criminal codes in most jurisdictions feature jail terms for defendants convicted of gross or aggravated misdemeanors; however, this does not necessarily mean that the sentence will be imposed and enforced. In Utah, for example, driving under the influence is a gross misdemeanor that could result in 364 days in jail, but rarely will defendants end up behind bars for a first offense. Also, a state where DUI offenses are not technically misdemeanors but still carry a jail sentence, judges will suspend jail sentences for cases that do not involve injury or property damage. In Utah, aggravated misdemeanors may result in what is known as active sentences, which consist of jail terms up to a year. In some cases, judges may not be able to reduce active sentences if the offense involved assault with a weapon and the defendant has a prior conviction. Sexual battery is an example of an aggravating factor that often requires active sentences to be carried out The primary distinction between a misdemeanor and a felony is the amount of jail time a person faces if convicted. Misdemeanors, generally, do not allow jail sentences of more than one year, while felony convictions can carry sentences starting at one year going all the way up to life sentences, and in some states, death sentences. Another distinction is that felony convictions will require jail sentences be served at state run facilities, often referred to as prisons, while misdemeanor sentences are generally served at local or county run facilities, which get referred to as jails. With any conviction, the court is going to assess fines not just for the crime itself, but for court costs, processing costs, and potentially even the costs to house you in jail. Typically, the fines for a misdemeanor conviction in any given state are going to be less than those assessed against an individual convicted of a felony, but can still be rather substantial. Many states also qualify some misdemeanors as petty crimes. Petty crimes usually carry lesser fines and lesser maximum jail sentences.

If you are arrested but not charged, or charged, but not convicted, you may request that a court expunge the record of your arrest and/or charges. Even if you are convicted of a misdemeanor, after you have completed your sentence, including any court ordered post-incarceration programs, you can also request that the record of your conviction be expunged. Sometimes a prosecutor may agree to make an expungement part of a negotiated plea bargain, where after all conditions of the plea bargain have been satisfied, such as fines paid, community service completed, probation completed without any violations, the court will automatically expunge the record. Typically, an individual will be allowed one expungement in their lifetime. For many people, having a criminal arrest and/or conviction record can create unwanted and negative consequences long after a person’s debt to society has been paid. A record does not even have to reflect an actual conviction to also do damage to a person’s reputation. As background checks and the availability of technology make it easier than ever to access the complete history of a person, any type of legal record can cause issues for everything related to applying for a job, to trying to rent an apartment, buying a car, and in many other instances. If a person convicted of a crime that falls under the purview of a state’s expungement laws and they successfully expunge that record, then if they are asked on a job, rental or mortgage application if they have ever been arrested or convicted of a criminal offense, they can honestly answer no. Recognizing that these types of records may do an inordinate amount of unintended damage to a person’s life, every state has enacted some form of criminal record expungement. Expungement is the process of sealing or destroying court records, meaning that the record is no longer available to be accessed and a person no longer needs to reveal the details surrounding the incident to which the record pertains. Each state administers their own form of expungement, and criteria and the application of expungement laws will vary from state to state. Some states may use terms such as removal, destruction, or expunction of records, but the overall effect is essentially the same. The true definition of expungement means that records are actually physically destroyed. This ensures that they cannot be accessed in any way, shape or form. However, some states do not allow for the physical destruction of records. In those states, records are instead sealed.

It should be noted that many times the terms expungement and sealed are used interchangeably, but that is not the case. If records are only sealed, then in some cases, state law may allow for them to be opened under very specific cases. Sometimes this may be when law enforcement personnel are investigating a case or if a person is arrested or facing conviction of a serious crime at a later date. If your state only seals records, it may be in your best interests to investigate further the circumstances that may lead to the unsealing of a legal record. One of the most powerful forms of expungement is a Certificate of Actual Innocence. These can be issued if a person is charged with a crime, but those charges are later dropped, or the defendant is found not guilty after going through a trial. Obtaining a certificate counteracts any possibility that a record may be unsealed and cause issues for a person at any point in the future. It basically proves that a legal record should have never existed at all in any form. Another possible avenue for someone who has been convicted and seeking expungement is to obtain proof of rehabilitation. This proof can stand on its own or be used as part of the petition. It provides evidentiary proof that a person has taken the necessary steps to live a life of exemplary conduct, taking steps to be proactive in correcting any past possible wrongs they may have committed. This includes demonstrated remorse and full payment of any restitution due to victims. Expungement may also take the form of a pardon from state law enforcement officials. A pardon does not erase the crime you committed, but it does provide an official notice that you have been forgiven for that crime. You will still need to disclose information about past criminal activity when required, but a pardon will offset the impact of that record to some degree. The single biggest benefit of a successful expungement is that you can truthfully and legally say you were never arrested, accused or charged with a crime. It is as if the entire incident never happened and restores you to your state in life before you were ever arrested, charged or convicted. When you apply for a job, or if you are already working for an employer, they are not allowed to ask about an expunged conviction. It cannot be used against you in any employment decision either. An expunged conviction will also not show up in most all employer background checks as well. Because you can legally answer no on job applications regarding whether or not you have a criminal history, you can become eligible to apply for better jobs that pay more, increasing your earning capacity and lot in life. In addition, many landlords not only run credit checks, but criminal background checks as well. After an expungement, no activity will pop up, meaning you won’t be denied from living where you want to live. The same also applies when making an application for a mortgage or a credit card in some cases as well.
In all cases, to be eligible for consideration of having records expunged, a person will need to meet several criteria. Those criteria may include:
• The types of crimes and infractions eligible for expungement must be within the approved guidelines of a particular state’s laws.
• Criminal proceedings were either dismissed, the defendant was found not guilty or they were acquitted after a trial. A few states do allow for the expungement of records if a person has been convicted.
• The person was actually released before formal criminal charges were filed.
• The person has met all waiting periods, which vary by state, before seeking to petition the court for expungement.
• There are no new pending charges or offenses against the person seeking expungement.
• Any fines or restitution required to be paid as part of a case have been paid in full.
• Any diversion programs, education programs, community service requirements and probation have been completed.

Most states treat the expungement of records for minors differently than they do for adults. In some states, the expungement of records for minors is even mandatory. Many states also seal records of minors automatically and immediately. The premise is to not have a youthful offender suffer the consequences of a legal record follow them around into adulthood, negatively impacting them for an extended period of time. With few exceptions, and if all conditions are met, the expungement process will typically start by filing an application or a petition for an expungement.
You will need to include several documents with the petition, which may include:
• Certificate of eligibility (from your state’s probation department)
• Acceptance of service
• Consent and waiver of hearing
• Prosecutor and victim statements
• Victim checklist
• Petitioner’s reply
• Findings of fact and conclusions of law
You will work with your state’s probation department to prepare a report that the court will use to determine whether or not you are eligible for expungement. A prosecutor may challenge the expungement by filing an objection before your expungement hearing. The court will review the probation department’s report that will indicate how a person has behaved since their legal issue, looking to see if it was an isolated incident. If this is shown to be the case, then there’s a good chance the expungement will be granted. While reasons may vary from state to state, some things that may cause an expungement petition to be denied may include:
• The petitioner has not met the necessary time requirement/waiting period, all fines have not been paid, or terms of probation have not been met.
• Court records indicate the case is still open.
• If a case took place in a federal court, it cannot be expunged. Federal crimes are not eligible.
• The petitioner has a pending arrest or has been convicted of another offense.
• The type of crime that is being petitioned is not eligible. Generally, the more serious the offense, the less likely it is that it will qualify. Very few felonies can be expunged and crimes of a sexual nature are also very limited as well.
Many states allow for some felony convictions to be expunged. Serious felonies-including sexual offences such as rape or child pornography, or other violent crimes are almost never eligible for expungement. Generally, a petition for expungement must be filed with the court that convicted you of the felony. Forms are often available online through each state’s government website, but the guidance of a qualified expungement lawyer may be a good investment. The process can be lengthy and sometimes complicated, more so with felonies than with misdemeanors. Ultimately, it is up to the judge to decide whether expungement is granted. If you’ve been arrested and charged with a misdemeanor crime, you may be worried about spending a significant amount of time in prison. Chances are good that you’ve already been exposed to the penal area of the police station that processed you in the aftermath of your arrest. Depending upon the jurisdiction in which you were arrested and the time of day in which the arrest occurred, you may have been jammed into a cramped jail cell or given a semi-private room of your own. If you’ve already spent time with other accused criminals in a secure environment, you may be dreading the thought of returning to such a place after your conviction. The rules that govern misdemeanor crimes vary widely by jurisdiction and classification. For starters, there are several different classes of misdemeanor crimes. These range from lightly-punished petty misdemeanors to relatively serious Class A misdemeanors. Depending upon the state in which you’re arrested, these classes may designate numerically or alphabetically. In either case, they’re functionally similar. If you’re charged with a petty misdemeanor, there’s virtually no chance that you’ll be sent to prison. Most petty misdemeanors are punishable by a relatively small fine of $300 or less. Examples of petty misdemeanors include petty theft and personal possession of certain controlled substances. If you’re charged with a low-level misdemeanor that’s deemed to be more serious than a petty misdemeanor, you’ll probably face a significant fine and may be required to participate in a community-service program. However, it’s unlikely that you’ll be incarcerated for such a crime. Low-level misdemeanors include vandalism, disorderly conduct and disturbing the peace. Meanwhile, more serious misdemeanors like burglary and grand theft might be punishable by some jail time. In most cases, misdemeanor jail sentences can’t exceed two years in length. The likelihood that you’ll be incarcerated for a misdemeanor may also depend upon the state of the prison system in your jurisdiction. In many states, municipal and state-run jails are overflowing with inmates. For instance, California’s prison population exceeds the rated capacity of its prison system by a factor of two. Given the obvious space constraints that this systemic overcrowding can produce, many judges are inclined to be lenient with repentant offenders. In other words, any prison sentence that you would have received for your crime could be reduced to a “time served” sentence that involves significant amounts of community-service work. If you show remorse for your actions, such an outcome will be more likely.