Almost any assault and battery attorney in Orange County, CA would probably tell you that the first duty of a government is to maintain the civil order and “keep the peace.” Even today, that primary obligation of the state is still recognized when law enforcement officers are referred to as “peace officers.” The first law against disturbing the peace in the state of California took effect back in 1872.
Today in this state, “disturbing the peace” is a criminal offense (under California Penal Code Section 415) that occurs when someone publicly conducts himself or herself in an aggressively disruptive manner – such as by fighting or by generating unnecessary excessive noise. The charge of disturbing the peace can be prosecuted as an infraction or as a misdemeanor depending on the details of the incident. However, a charge of disturbing the peace on the grounds of a public school in California will always be prosecuted as a misdemeanor.
The California Penal Code provides three ways that a person in this state may be charged with and prosecuted for disturbing the peace. One way a person disturbs the peace in California is by fighting in a public setting or by merely challenging someone to a fight in a public setting. The state is not required to prove that a defendant “really” wanted a fight – simply saying the words in a public setting is enough to constitute a crime.
Someone also disturbs the peace in California by intentionally creating “loud and unreasonable noise” that is a “malicious or willful disturbance” of another person’s – or an entire neighborhood’s – reasonable peace and quiet.
CAN WORDS ALONE “DISTURB THE PEACE” IN CALIFORNIA?
The third way a person can disturb the peace in California is with the public use of “offensive words” that are “inherently likely” to incite or provoke “immediate” violence. To convict a defendant of disturbing the peace in this manner, the courts in California require a detailed examination of the context where the offensive words were allegedly uttered. The U.S. Constitution’s First Amendment protects freedom of speech, so the state must prove that a defendant’s words, in their proper context, posed a clear and present danger of inciting or provoking immediate violence.
Courts in California decide what words are offensive on a case-by-case basis, because words that are vulgar, profane, rude, abusive, or disrespectful – by themselves – do not justify a criminal prosecution except in those specific contexts where the words are likely to incite or provoke immediate violence. The First Amendment makes it quite difficult for the state to convict someone for this third way of disturbing the peace.
If a defendant can prove that the accusation is false or that the words were protected by the First Amendment, uttered in self-defense, prompted by illegal police misconduct such as entrapment, or that the defendant reasonably believed the words would prevent an even greater harm, a good Orange County criminal defense lawyer may be able to win an acquittal or simply have the charge dismissed.
WHAT ARE THE PENALTIES FOR DISTURBING THE PEACE?
When disturbing the peace is prosecuted as an infraction in California, the maximum penalty for a conviction is $250, and no jail time is imposed. However, a misdemeanor conviction for disturbing the peace in this state is punishable with a fine of up to $400, a term of up to ninety days in a county jail, or both. A disturbing the peace conviction goes on the offender’s criminal record.
However, the average Californian or visitor to California probably doesn’t need to worry about going to jail for playing loud music. This is, after all, California. Most of the laws in our state regarding loud music or excessive noise are quite reasonable local ordinances that merely forbid excessively loud parties – or even loud construction crews – at unreasonable hours and particularly in or near residential areas.
However, the enforcement of these local ordinances seldom leads to a criminal charge. Criminal charges for disturbing the peace are typically used for other types of violations. Disorderly conduct is a more serious charge, and in many California jurisdictions, police agencies vigorously enforce the laws against disorderly conduct, including public intoxication. However, simply being drunk in public, by itself, does not constitute a crime in California. The crime is being drunk “and disorderly.”
WHAT CONSTITUTES DRUNK-AND-DISORDERLY CONDUCT?
To be convicted of drunk-and-disorderly conduct, the state must prove that a defendant was either too impaired to regard his or her own safety or the safety of others, or that a defendant obstructed, interfered with, or otherwise prevented other people from safely using sidewalks, public streets, or other “public ways.” It’s quite legal to be extremely drunk in California, even in public, but passing out on the sidewalk in a way that blocks other pedestrians might result in a criminal conviction.
Under California Penal Code Section 647, “disorderly conduct” includes much more than public drunkenness. Disorderly conduct in California may also include “lewd or dissolute” public conduct, soliciting or agreeing to any act of prostitution, panhandling, “peeping,” or loitering or prowling on private property. In some cases in this state, the lesser charge of disturbing the peace under California Penal Code Section 415 may be offered by the prosecution as a plea bargain so that defendants can avoid convictions for more specific charges that include but are not limited to:
- drunk-and-disorderly conduct
- lewd public conduct
- prostitution or solicitation
- domestic violence
- simple assault
- making criminal threats
A disorderly conduct charge is a misdemeanor charge in California, but it’s more serious than disturbing the peace. A disorderly conduct conviction can land someone in a county jail for up to six months and cost someone a fine of up to $1,000 – or both. Even if the only sentence is probation, the conviction goes on the offender’s criminal record, where it can be seen by employers and professional licensing boards. In southern California, anyone accused of disorderly conduct will need the advice and services of an experienced Orange County criminal defense lawyer.
In one sense, disturbing the peace is a unique kind of crime. Whereas the act of murder or armed robbery is always a crime in every setting, the acts that constitute disturbing the peace must take place in particular contexts before they are considered crimes. That makes it tougher for the state to win a conviction, and that’s why anyone charged with disturbing the peace in California should fight the charge – there’s a good chance of winning.