What is a Criminal Infraction?

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A siren goes off behind you. That light was yellow, you are certain. The officer who comes to the window disagrees. She takes your license and registration, goes back to the squad car for an excruciating ten minutes, and returns with a citation. This is an imposition and an expensive lesson, especially if an insurance rate hike is included. But it's also often a criminal infraction, a category that covers a rather large amount of misconduct. (Note that some states consider certain kinds of infractions like traffic tickets to be civil, rather than criminal, offenses.)

How Does An Infraction Differ From A More Serious Crime?

Criminal infractions are the least serious class of crimes and fall below misdemeanors in severity. They include traffic stops for minor moving violations and other low-level misconduct. In general, the penalty for a criminal infraction is limited to a fine and does not lead to jail time.

Examples of infractions

Traffic infractions include speeding, running a red light, failing to signal a turn and the like, but do not include driving under the influence or hit-and-run, which are more serious crimes and carry the potential for incarceration if convicted. In addition to driving infractions, jaywalking, loitering and, in some jurisdictions, possession of small amounts of marijuana are also criminal infractions.

Marijuana possession

Several states have reduced the charge for possession of marijuana for personal use to a criminal infraction. In the states where this is the law, the amount of marijuana possessed is specified and any amount larger than that may lead to criminal charges. Some states, such as California, have legalized medical use of marijuana, so a person with a medical marijuana card or other certification may legally possess a certain amount for that purpose. In 2013, laws took effect in Washington State and Colorado legalizing recreational use of marijuana, so any person may possess a specified amount of marijuana without risk of being cited for an infraction in those states.

The laws governing marijuana possession vary greatly from state to state, and possession of any amount of marijuana is a crime (not simply an infraction) under federal law. For more information on marijuana laws in your state, see Marijuana Laws: Crimes & Penalties.

Even A Simple Infraction Can Turn Into A Bigger Problem

Although a stop for an infraction is not as serious as a criminal arrest, such a stop does enable police officers to potentially escalate such a stop into an arrest and to potentially conduct some type of search, which is itself invasive and can lead to more serious charges.

Can police search a person during an infraction stop?

In general, a police officer cannot conduct a search based simply on the stop itself. But if the officer sees, smells, or otherwise observes something during the stop that would give rise to a reasonable suspicion that criminal activity was afoot, the officer can conduct a search.

A few states allow police officers to arrest individuals stopped for criminal infractions. Upon arrest, an officer can search the individual, his or her vehicle, and/or his or her bags, purses, etc.

An infraction can expand into a crime

As indicated above, if a police officer observes evidence of a crime during a stop for an infraction, the person stopped may be charged with the crime in addition to the infraction. For example, where an officer stops a driver for running a red light and then smells alcohol on the person’s breath, the officer can arrest the individual for driving under the influence and conduct a search of the person and the vehicle.

In addition, some people object to being stopped and this situation can rapidly escalate into a “resisting arrest” or even “assault on an officer” criminal charge.

Penalties For Infractions

Criminal infractions typically carry a fine of some amount and no risk of jail time. Because there is no risk of incarceration, some jurisdictions treat infractions like civil actions and even hear them in civil courts. As a result, the prosecution’s burden of proof may be lower than it is in a criminal trial.

Conviction of certain criminal infractions can be expensive, both in the amount of the fine imposed and in the effect the conviction may have on insurance rates, for example. Courts will sometimes allow those convicted of criminal infractions to attend traffic school or other diversionary programs, which may reduce the financial impact of the conviction.

Ignoring infractions can lead to an increase in the fine amount and, in some instances, to an elevation of the charge to a misdemeanor with the added potential penalty of jail time.

Legal Counsel

Although it is possible to respond to a criminal infraction without hiring an attorney, it is wise to consult with local counsel experienced in the law in your area to make sure that the infraction is just that, and not a charge that may carry a greater penalty. And, if you have been charged with a misdemeanor or felony arising out what began as an infraction, be sure to consult with a lawyer.

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