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PC 22810: Illegal Use of Tear Gas: Law, Penalty, & Defense

Updated: Dec 20, 2020

There are a variety of California laws that make it illegal to engage in certain conduct related to tear gas. These laws make it a crime to do any of the following: knowingly use, possess, or sell tear gas by a convicted felon (PC 22810(a) Abbr.), sell tear gas to a minor (PC 22810(c)), use tear gas as a projectile, such as a projectile from a tear gas gun (PC 22810(e)(1)), possess tear gas in a quantity greater than 2.5 ounces net weight (PC 22810(e)(1)), use tear gas for any purpose other than for self-defense (PC 22810), use tear gas against a peace officer (PC 22810(g)(2)), and more.


This information is dedicated to a summary of the law, penalty, and defenses related to the most commonly charged tear gas violation, which is use of tear gas against a peace officer (PC 22810(g)(2)). To learn more about other types of tear gas crimes in California contact our criminal defense lawyers for a free consultations.


PC 22810(g)(2) Law


Any person who uses tear gas against a peace officer who is engaged in the performance of official duties, and the person committing the offense knows, or reasonably should know, that the victim is a peace officer, is guilty assault on an officer with tear gas (PC 22810(g)(2) Abbrev.).


Tear Gas Defined: Tear gas is any liquid, gaseous or solid substance that is intended to produce temporary physical discomfort, or permanent injury, through being vaporized or otherwise dispersed in the air (PC 12401 Abbrev.).


Assault on a Peace Officer: To attack or assault a peace officer with tear gas means to place the peace officer in reasonable apprehension of an immediate battery via tear gas or a tear gas canister. In other words, to assault a peace officer with tear gas means to attack a peace officer with tear gas, or a tear gas canister, either by a projectile of a tear gas canister, or by hand-held tear has spray, with the intent to cause fear or harm to the peace officer.


PC 22810(g)(2) may be charged against the assailant even if no peace officer was actually harmed by the defendant’s conduct. If the peace officer is harmed by the tear gas, or the tear gas canister, then the defendant may be charged with battery against a peace officer (PC 243(b)), severe injury to victim (PC 12022.7(a)), and more.


Note: PC 22810(g)(2) is commonly charged after a person picks up a canister of tear gas and throws it towards law enforcement officers after the tear gas was first fired towards the person by law enforcement.


PC 22810(g)(2) Penalties


PC 22810(g)(2) may be filed as a misdemeanor or as a felony criminal charge. This means that the using tear gas against a peace officer is a wobbler crime. This classification as a wobbler crime is important when it comes to any possible plea bargaining between the district attorney and the defendant, wherein the classification of the criminal charge is reduced from a felony to a misdemeanor, and for post-conviction relief options.


Felony PC 22810(g)(2) Jail Sentence: If the defendant is convicted of a felony violation of PC 22810(g)(2) she may face up to a three year sentence in a local county jail. The three year sentence is the maximum sentence in a felony PC 22810(g)(2) case; however, the judge has other sentencing options, including a no jail probation sentence, a two year jail sentence, or a sixteen month jail sentence. The sentence that is ordered is determined by several factors, including the presence of any mitigating or aggravating factors in the facts of the case, the terms of any plea bargain between the district attorney and the defendant, and the defendant’s criminal history, if any.


Note: Felony PC 22810(g)(2) is usually labeled as PC22810(g)(2)-F on court related documents.


Misdemeanor PC 22810(g)(2) Jail Sentence: If the defendant is found guilty of a misdemeanor violation of PC 288(g)(2) she may face up to one year in the county jail. This one year jail sentence is the maximum jail sentence for a misdemeanor violation of illegal using tear gas against a peace officer; however, the actual sentence range for misdemeanor PC 22810(g)(2) can be anywhere from a no jail probation or diversion sentence to a one year in actual jail.


Note: Misdemeanor PC 22810(g)(2) is usually labeled as PC22810(g)(2)-M on court related documents.


Probation Sentence: A probation sentence is a period of supervision, which is supervised either by the court, or by a probation officer, and which is intended to serve as a substitute to jail. A probation sentence is allowed in both felony and misdemeanor violations of PC 22810(g)(2), but a probation sentence is not guaranteed. Whether or not the defendant receives a probation sentence after a conviction for illegally using tear gas against a peace officer depends largely on the facts of the case, the defendant’s criminal history, and the terms of any negotiated plea bargain between the district attorney and the defendant, if any. A probation sentence has terms, or conditions, that must be followed by the defendant in order to remain on an out-of-custody probation sentence.


Felony v. Misdemeanor Probation: A felony probation sentence is monitored by a probation officer. The terms of a felony probation sentence are usually more restrictive of the defendant’s liberties while she is on probation than the terms of a misdemeanor probation sentence. In any event, the terms of a felony probation sentence usually include: commit no violation of the law (misdemeanor or felony violations; traffic infractions are not generally considered violations of probation), pay fines and restitution, have no contact with victims or locations (criminal protective orders), submit to a search of the probationer’s home or person (Bravo Search), attend anger management classes, and more.


Misdemeanor probation is monitored by the Clerk of the court. This means that unless the defendant does not follow a term of probation then the probationer will generally have no further contact with the court or a probation officer. Misdemeanor probation terms are not generally as harsh as felony probation terms. With that said, probation terms for a violation of PC 22810(g)(2) generally include: commit no crime (misdemeanor or felony), pay fines and restitution to victim(s), if any, stay away from certain people or locations (criminal protective orders), and attend anger management classes (in some cases).


Alternative Jail Sentence & Probation: Sometimes, a probation sentence will include a jail sentence as a term of probation. This is confusing to many as a probation sentence is intended to be in lieu of jail. However, when a jail sentence is ordered as a term of probation, that jail sentence may usually be served alternatively on work release (manual labor) or house arrest (stay at home orders). Additionally, the jail sentence ordered as a term of probation is usually much shorter than the jail sentence that could have been ordered if the defendant was not placed on probation. For more information, see Work Release Sentences.


Note: Sometimes, a jail sentence that is not ordered as a term of probation may nevertheless be served alternatively on work release or house arrest. Whether or not a jail sentence may be served alternatively depends on the several factors, including the judge’s position on the issue, the terms of any plea bargain between the district attorney and the defendant, and whether or not the defendant is released from jail early as part of a split jail sentence (See below at PC 1170(h) Sentencing).


PC 1170(h) Sentencing: The crime of illegal use of tear gas against a peace officer is subject to California’s relatively new felony sentencing laws found at PC 1170(h) et seq. In short, if the defendant is convicted of felony PC 22810(g)(2), and the defendant is not granted a probation sentence, then she may have her incarceration served in a local count jail, as opposed to a California state prison. In addition, the defendant’s jail sentence may be suspended (not served unless the defendant violates a term of her out-of-custody release), or split (served partially in jail and partially out of jail on work release).


Note: Sometimes, an officer is severely injured by the defendant’s illegal use of tear gas against the officer. When this happens, the defendant may be charged with a violation of PC 22810(g)(2), as well as a criminal penalty enhancement of PC 12022.7(a) [Great Bodily Injury (GBI) Enhancement]. When this occurs, the defendant is eligible for probation only if there are unusual facts in the case that justify a probation sentence.


Furthermore, if the defendant is charged with a PC 12022.7(a) GBI enhancement, then the defendant is not eligible for PC 1170(h) sentence. This means that a conviction for PC 12022.7(a) will likely amount to the defendant being incarcerated, as opposed to being granted a probation sentence, and that incarceration will be served in a California state prison without the opportunity for a suspended or split sentence. For more information, see PC 1170(h) & PC 12022.7(a).


Diversion Sentencing: A diversion sentence is a period of supervision, which is similar to a probation sentence. The main difference between the two is that a diversion sentence results in the criminal charges being dismissed at the end of the diversion period, whereas a probation sentence does not result in the criminal charges being dismissed at the end of the probation sentence.


Essentially, a diversion sentence is a process that goes around criminal prosecution (diverted prosecution). The process of diverting a criminal conviction in PC 22810(g)(2) cases entails the defendant initially pleading guilty to the crime; thereafter, the defendant is placed on diversion with orders to obey certain terms that are similar to probation terms (i.e. pay fines, pay restitution, attend classes, stay out of trouble, etc.). If the defendant fulfils the terms placed upon her than the court will dismiss her criminal case; if the defendant does not fulfill the terms place upon her then the court already has her guilty plea and the court will sentence her accordingly.


Note: Diversion sentence, like probation sentencing, is not guaranteed in PC 22810(g)(2) cases. Whether or not the judge or the district attorney grants the defendant the opportunity to enroll in a diversion program is decided on a case-by-case basis. However, if the defendant is defendant is a licensed professional, such as a lawyer, doctor, dentist, etc., then a diversion sentence is usually, but not always a good option for the defendant. This is because diverted crimes generally have much less negative impact on a licensed professional’s professional license (suspension, revocation, discipline, etc.). For further information, see Diversion in Criminal Law & Professional Licensing and Criminal Law.


Three Strikes Law: The crime of illegal use of tear gas against a peace officer is not considered a strike offense under California’s Three Strikes Law. This is because PC 22810(g)(2) is neither a serious felony (PC 1192.7), nor a violent felony (PC 667.5), under California law. As such, the defendant is entitled to early release from jail after serving the full sentence of her PC 22810(g)(2) conviction, even if she is convicted of multiple offenses (Prop 57). This is true so long as those other offenses are also non-serious and non-violent. For more information, see California Three Strikes Law, PC 1192.7, PC 667.5 & Prop 57.


Note: Despite the fact that a PC 22810(g)(2), by itself, is not a strike offense (see above), the defendant’s case can be complicated if the district attorney alleges that the officer sustained severe bodily injury when he was attacked by the defendant with tear gas. If this happens, the district attorney will likely add a GBI enhancement allegation (PC 12022.7(a)). A PC 12022.7(a) allegation is not a strike offense, but it is a serious and violent offense, as those terms are defined under California law. As such, if the defendant is convicted of this criminal enhancement, along with the PC 22810(g)(2) charges, then the defendant may not avail himself of the sentencing benefits of PC 1170(h) and/or Prop 57. For more information, see Sentencing Penalty Enhancements, Serious Felonies, & Violent Felonies.


CIMT: PC 22810(g)(2) is not likely a crime involving moral turpitude (CIMT) unless the officer suffers serious bodily injury (PC 12022.7(a) Enhancement). A crime involving moral turpitude is any crime that involve deceit, such as fraud, embezzlement, theft, etc., or is otherwise considered morally wrong. This is an important area of the law that is ever-changing and expanding. Therefore, every criminal defendant should contact a criminal defense lawyer before pleading guilty to a crime so she that may ascertain how a CIMT conviction could affect her professional license or immigration status.


Essentially, any conviction for a CIMT can lead to severe collateral consequences for licensed professionals and non-US citizens. Because of this, it is especially important for any licensed professional, or non-US citizen, to heavily consider these CIMT consequences before making any guilty plea or no contest plea. For more information, see Licensed Professionals and Criminal Law, & Immigration Consequences for Criminal Convictions.


Additional Punishment: In addition to the penalties listed above, if the defendant is found guilty of PC 22810(g)(s), she may suffer any of these additional punishments: Civil lawsuits (from officers and police departments that are physical and economically injured by the defendant’s conduct), book and release orders (if the defendant was not already booked into jail to obtain basic pedigree information about the defendant), court fines and fees, economic restitution to the victim(s), if any, loss of the right to own or possess ammunition or firearms, loss of the opportunity to enlist, or remain, in the military, orders to stay away from people or place, orders to serve community service, payment of bail to remain out of jail during the pendency of the criminal proceedings, and more.


PC 22810(g)(2) Defenses


The facts of every criminal allegation are different; therefore, the defense that best meets the allegations of any particular criminal charge is different from case to case. With that said, some defenses are more commonly associated with PC 22810(g)(2) charges than others. The most commonly used defenses in illegal use of tear gas against a peace officer cases includes: alibi defense, statute of limitations, insufficient evidence, coerced confessions, mistake of fact, defense of others, and more.


Note: Self-defense is a commonly used defense to a charge of illegal use of tear gas, but it is not a commonly used defense to a charge of illegal use of tear gas against a peace officer. The problem with using the defense of self-defense against the specific charge of PC 22810(g)(2) is that the officer who is attacked with tear gas is not likely to be deemed an assailant to the defendant. Therefore, self-defense does not tend to work well as a defense unless the person attacked by the defendant is not a peace officer.


Remember, use of tear gas itself is not necessarily a crime if that tear gas is used in self-defense; however, even if the defendant is entitled to use tear gas to defend herself, it does not mean that she had the right to possess the tear gas in the first place (PC 22810(a)). Therefore, a claim of self-defense is not always a complete defense to all tear gas crimes.


To learn more about tear gas crimes, including the illegal use of tear gas against a peace officer, or PC 22810(g)(2), contact our criminal defense lawyers today. Our criminal defense lawyers have handled hundreds of misdemeanor and felony offenses related to officer-involved conduct. There is no charge for a first-time in-office consultation. Our lawyers are experienced, successful, and are ready to assist you seven days a week in the cities of Redlands, Chino, Fontana, Grand Terrace, Ontario, Rancho Cucamonga, and all surrounding areas. Call today!


909-913-3138


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