It is illegal to operate an unmade aircraft (drone) over a jail or prison in California (PC 4577).
It is also illegal to possess any wireless device, including a drone, which is used to deliver items to a jail or prison inmate PC 4576).
Example: David has two drones (unmanned aircraft). David flies drone 1 over a jail where his girlfriend is incarcerated. David is caught by police before he begins to operate drone 2 over the same jail.
Result: David may be charged with both PC 4577 (Operate Drone Over Jail), and PC 4576 (Possession of Wireless Device Used to Deliver to Inmate).
Note: In the above example, if David uses the drone or wireless device to deliver drugs or other contraband to his girlfriend, then David may also be charged with additional crimes, such as illegal transportation of a controlled substance, etc.
Wireless Device: A “wireless device” can include a drone (unmanned aircraft, but it can also include other wireless devices, such as remote-control cars, balloons, etc.
Possession: For PC 4576 crimes, possession of a wireless device means either actual possession or constructive possession.
Actual possession means the defendant has the wireless device on his person, or within reach of his person. Constructive possession means the defendant has the ability and right to possess the wireless device.
For example: David keeps a wireless device (drone) in garage. David uses the drone to fly drugs to inmate at a local jail. David is arrested ten miles from home, but the district attorney charges David with possession of a wireless device used to deliver to jail or prison inmate (PC 4576).
Result: David has "constructive" possession of the drone that he uses to fly drugs into the jail because David has the right to control what is in his garage. This is true even though David does not have the drone on him when he is arrested (actual possession).
Joint Possession: Two or more people can have either actual or constructive possession of an object.
Punishment (PC 4577 & 4576)
Infraction: Penal code 4577 (operate drone over jail or prison) is classified as an infraction, which is the lowest classification of crime in California. The penalty includes a fine of up to $500 dollars and confiscation of the aircraft or drone. There is no jail sentence related to a PC 4577 violation.
Misdemeanor: If the wireless device or drone is used to deliver an item to a jail or prison inmate, then the crime is usually charged as a misdemeanor under penal code 4576.
Distinction: Operating a drone over a jail or prison is an infraction, but if that drone is used to deliver an item to an inmate (i.e., drugs, knife, etc.), then the crime is elevated to a misdemeanor. If the item delivered to the jail or prison inmate by way of drone is an illegal substance (i.e., narcotics), then the drone operator will also be charged with additional relevant crimes.
Jail Sentence: If the defendant if found guilty of delivering items to inmates (PC 4577), the defendant may face up to one hundred eighty days (180) days in the county jail. Incarceration would likely be in a jail that is different than the jail associated with defendant’s crime.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail sentence. A probation sentence is allowed in PC 4577 cases, but a probation sentence is never guaranteed.
Whether the defendant is allowed to serve a probation sentence, as opposed to a jail sentence, depends on the facts and circumstances of the case, the defendant’s criminal history, the terms of any negotiated plea bargain between the defendant and the district attorney, and more.
A probation sentence for violation of penal code 4576 will likely include criminal protective orders that forbid the probationer from visiting any jail or prison, confiscation of the drone or wireless device, court fees and fines, and more.
Note: No probation sentence is ordered for infraction violations of PC 4577.
A probation sentence after a conviction for possession of a wireless device to deliver to inmate is classified as “informal, misdemeanor, summary, or court probation.” These terms are synonymous. Informal probation is monitored by the court, as opposed to a probation officer.
Also, a probation sentence for any PC 4577 conviction can include a short jail sentence as a “term of probation,” but this jail sentence is generally much shorter than a jail sentence related to a non-probation sentence.
Work Release: Sometimes, a jail sentence related to a PC 4577 conviction may be served alternatively on work release as opposed to being served in county jail. For more information, see Work Release.
Fifty Percent Credit: Any jail or work release sentence related to the crime of possession of a wireless device to deliver to a jail or prison inmate may be reduced by up to fifty percent for good behavior.
Example: David is found guilty of delivering drugs by drone to his girlfriend, Diane, who is an inmate in a California state prison. For his crime, David is placed on misdemeanor probation with a term of probation that he serves 20 days in a county jail. If David serves his jail sentence with good behavior, then he will only serve 10 days [half of the 10 days he was ordered to serve as a condition of probation].
Probation Period: The probation period related to PC 4576 violations is one year; however, this one-year period of probation may be extended, tolled (paused), shortened, or terminated, depending on several factors (PC 1203.1, & 1203.3).
Crime Involving Moral Turpitude: A crime involving moral turpitude is any crime that involves deceit, fraud, or morally apprehensible actions. The crime of flying a drone over a jail or prison (PC 4577) is not a crime involving moral turpitude; however, if that drone is used to deliver to a jail or prison inmate (PC 4576), then defendant will have committed a crime involving moral turpitude.
Crimes involving moral turpitude, including PC 4576, carry direct negative consequences related to immigration status (i.e., deportation of non-U.S. citizens, etc.), professional licensing status, military service opportunities, and more.
Additional Penalties: In addition to any jail or probation sentence after a conviction for PC 4577, the defendant could suffer any of the following penalties: court fines and fees, criminal protective orders, restitution, loss of firearm rights, loss of scholarship opportunities, civil lawsuits, and more.
Defenses (PC 4577 & 4576)
The defense to a typical PC 4577 crime (operate a drone over a jail or prison) includes mistake of fact (unknown location of drone), insufficient identity of the drone operator, illegal search and seizure, and more.
Common defenses to PC 4576 crimes (possession of wireless device to deliver to jail or prison inmate) include insufficient evidence to prove drone operator, illegal search and seizure, statute of limitations, coerced confession, entrapment, and more.
Statute of Limitations: The statute of limitations for the crime of possession of a wireless device to deliver to a jail or prison inmate is one year from the date of the alleged violation; however, this statute of limitations may be extended, or “tolled” for various reasons.
Also, unreasonable delay in prosecution of PC 4576 cases could lead to a dismissal of the charges even if the statute of limitations has not run (Serna Defense).
Mistake of Fact: The defendant has a valid defense to a PC 4577 charge where he or she is not aware that his or her drone is flying over a jail, juvenile hall, prison, or prisoner camp. Drones fly far and sometimes the drone operator might fly a drone, inadvertently, over a jail or prison. This is more likely a defense in a case where the defendant is charged with flying the drone over a open air prisoner camp or ranch.
Statutory Defense: Per PC 4577, certain jail or prison personnel are allowed to fly a drone over a jail or prison for security purposes.
Judicial Diversion: Judicial Diversion is a circumvention of the criminal prosecution process.
Essentially, to “divert” a PC 4576 criminal charge, the defendant is placed on a probation-like monitoring. If the defendant remains free from new misdemeanor or felony crimes during the diversion period, and the defendant pays any fines or attends any classes related to diversion requirements, then the defendant’s PC 4576 criminal charges will be dismissed.
Judicial diversion is allowed in cases of possession of a wireless device to deliver to a jail or prison inmate, but a judicial diversion is not guaranteed. The defendant must petition the court for diversion relief. Other diversion options in penal code 4576 cases might include military diversion, mental health diversion, & district attorney diversion.
Post-Conviction Options: PC 4577 crimes (flying drone over a jail or prison) may be expunged under new infraction expungement law (PC 1203.4). Also, the PC 4577 conviction might be appealed.
PC 4576 post-conviction options include appealing the misdemeanor conviction, withdraw a guilty plea (PC 1018), expunge the criminal conviction (PC 1203.4 & 1203.41), terminate a probation sentence early, and more.
For more information on California penal codes 4577 (Operate Drone Over Jail or Prison) and penal code 4576 (possession of wireless device to deliver to prisoners) contact our Southern California criminal defense lawyers today for a free consultation.
Our highly experienced criminal defense lawyers have successfully defended against hundreds of felony and misdemeanor crimes in the Inland Empire, Los Angeles and Orange Counties, including Redlands, Fontana, Pomona, San Bernardino, Riverside, Rancho Cucamonga, and more. Call today!
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