With Aggravating Factors, Carrying A Dirk Or Dagger Can Trigger Prison

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Overview Of Penal Code 21310

Knives are dangerous weapons and can cause considerable physical damage if you are stabbed including damage to internal organs and permanent disfigurement. Many stabbing victims die from loss of blood. Although knives are useful for cutting and in preparing food, they are lethal weapons if used with the intent to harm. Merely displaying or exhibiting one can cause extreme anxiety and may provoke a violent reaction.

For these reasons, the law regulates possession or carrying of certain knives known a daggers or dirks under Penal Code Section 21310. You may not conceal these knives on your person but you may openly carry them under Penal Code 20200 provided it is in a sheath hanging or suspended from your waist.

What Is A Dirk Or Dagger

A dagger or dirk is defined under PC 16470. It is:

  1. A knife
  2. That may or may not have a hand guard
  3. Which is capable of and immediately able to be used as a stabbing weapon
  4. That can or may cause significant or substantial injury or death

The proverbial Boy Scout knife, however, may be kept in your pocket or concealed so long as it closed. But utility knives and folding knives that are not switchblades are illegal if the knife blade is exposed and locked into position. If you do have one, you can lawfully conceal it so long as it is not locked in position and the knife blade is not exposed.

A folding knife or straight knife can be worn openly on your person but must be in sheath that is suspended from your waist. You cannot tuck the knife into your waistband or you are in violation of the law.

Switchblades

It is illegal to carry a switchblade, regardless if you conceal it or carry it openly. A switchblade is defined under PC 17235 as:

  • It appears as a pocket knife though they are generally larger
  • That has a blade that is at least 2 inches in length
  • That can be released automatically
  • By some kind of mechanism including applying pressure on the handle, by pressing a button, or flipping your wrist or applying pressure to the handle

Spring blade knives, snap blades and butterfly knives are also illegal to possess due to their similarity to switchblades.

List Of Other Prohibited Knives

There are also knives that you are not permitted to possess at all and will subject you to criminal penalties if you are found to have any of these in your possession:

  • Belt buckle knife—it is a belt that conceals a blade or knife within it
  • Cane swords—seen in movies or television mostly, it appears as a common cane from which you can remove a blade
  • Pen knives
  • Any other common everyday accessory that hides or conceals a knife or blade

How Does the Prosecutor Prove The Charge

To be convicted of illegally carrying a concealed dirk or dagger, the prosecuor must prove beyond a reasonable doubt each of the following elements:

  1. You were carrying a dirk or dagger
  2. That was substantially concealed or hidden
  3. And that you were aware of or knew you were carrying the weapon
  4. Which could be used as a stabbing weapon

Element of the Awareness of the Knife’s Presence

It can be obvious you were aware you possessed the knife on your person if it is bulging from your pocket or waist but not if it was relatively small and in a jacket or coat that you borrowed from someone else.

Element of Being Substantially and Knowingly Concealed

You need not completely hide or conceal the knife to be in violation of the law so long as it was substantially concealed and you intended to conceal it. This does not include knives that are kept in a sheath suspended from your waist.

Defenses to Carrying a Concealed Dirk or Dagger

Lack of Awareness

If the concealed knife was inside a coat or jacket, you may have been unaware of its presence. It helps if you can show that the garment belonged to someone else, that you were borrowing it or you had loaned it to someone who may well have placed it in there and had forgotten about it,

It was Not Concealed

The dirk or dagger must have been in plain view or not substantially concealed. These weapons can be carried openly but only if they are in a sheath suspended from your waist. This does not apply to switchblades or other knives or stabbing weapons that you are prohibited from possessing.

Illegal Search and Seizure

You cannot be searched by a law enforcement officer unless probable cause exists to do so. This means that the officer must have evidence that you committed or were about commit a crime. If you are arrested, you may be searched incident to the arrest, which may uncover a concealed dirk or dagger.

If no probable cause exists to stop or detain you and to search you, then a search is only valid if there was a search warrant or you consented to the search. If none of these circumstances existed, the weapon may not be used as evidence against you in any criminal proceeding following a successful motion to suppress use of the evidence.

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Penalties & Sentencing

Violation of PC 21310 is a “wobbler.” You can be charged with either a misdemeanor or felony.

As a misdemeanor, you face:

  • Informal or summary probation
  • Up to one year in county jail
  • And/or a fine up to $1000
  • Possible community service in lieu or jail time
  • Home detention with ankle monitoring

Aggravating factors that may result in you serving some time in jail include your lack of cooperation with police, having a criminal history that includes violence, any ties to gang activity or that you intended to use the weapon.

If convicted of a felony under this code section, you could be sentenced as follows:

  • Probation and up to one year in county jail
  • 16 months, 2 or 3 years in county jail
  • And/or a fine up to $10,000

Regarding your possession, sale, import or manufacture of other prohibited knives such as belt buckle or cane knives, you face either a misdemeanor or felony with the same penalties.

Enhancement

If you used the dirk or dagger that is found on your person and it was concealed when you were arrested or searched, you face an additional charge of personal use of a deadly weapon under PC 12022. You can be sentenced a consecutive sentence of one year in state prison, which is to be served after or before your sentence for violating PC 21310.

Expungement For Penal Code 21310

Under Penal Code 1203.4, convictions for misdemeanors and a number of various felony convictions are eligible for expungement. A conviction under 21310, if either a misdemeanor or felony, does not entail any state prison time so your conviction is eligible for expungement. However, if there is an enhancement whereby you were convicted of using the dirk or dagger, then the penalty calls for state prison time. If you are sentenced and do serve time in state prison, then, you are not eligible for expungement of your conviction but other post-conviction relief is available.

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Related Knife Charges

Assault with a Dangerous Weapon—PC 245(a)(1)

Use of knife to injure someone is assault with a deadly weapon as it fits the element of being an object likely to produce great bodily injury to someone. It is a wobbler so you either face a misdemeanor charge or up to one year in county jail, or a felony and 2, 3 or 4 years in state prison.

Brandishing a Weapon—California Penal Code 417

You commit a crime if you brandish a knife. This means waving it around, drawing it, exhibiting it or pointing it at someone in a rude, threatening or angry manner. This is usually done in a fight or if you were insulted or threatened by someone. You face a mandatory minimum jail sentence of 30 days and possibly an additional sentence if you were concealing the dirk or dagger.

Possession of Knives in State or Public Building or School-PC 171b and 626.10

Possession of particular types of knives are prohibited but if you are validly searched and possess any of the following knives in a state or public building or a school, you are violating PC 171b or PC 626.10:

Possession of any of these weapons in a state or public building is prohibited under PC 171b:

  • Switchblades
  • Knives at least 4 inches in length that is in a fixed or locked position or unguarded position
  • Air gauge knives
  • Belt buckle knives
  • Cane swords
  • Lipstick case knives
  • Ballistic knives
  • Pen knives
  • Shobi zues—PC 17160

It is a wobbler offense so you face either a misdemeanor charge and sentence of up to one year in county jail or a felony with a sentence of up to 3 years in state prison.

Possession of any of these weapons or objects in a school is prohibited under PC 626.10:

  • Dirk or dagger
  • Razor blade that is unguarded
  • Folding knife that can be locked in place
  • Any knife with a blade at least 2 ½ inches long
  • An ice pick

This is misdemeanor violation with a sentence of up to one year in county jail.

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Immigration Consequences

If you are not a legal resident or US citizen and you are convicted of carrying a concealed dirk or dagger under PC 21310, you face serious immigration consequences. Carrying a concealed knife is a crime of moral turpitude and such are crimes are deportable offenses under certain conditions:

  1. You are convicted of a crime of moral turpitude, of which a sentence of at least one year may be imposed, within 5 years of your lawful admission to the US
  2. Or, you are convicted of two crimes of moral turpitude that did not arise out of a single transaction, incident or criminal scheme

If you are convicted of a felony, the maximum sentence is at least one year so this would qualify as a deportable offense.

If deported, you must wait either 5 or 10 years, depending on the crime, before applying for readmission though there are crimes for which you will never be readmitted such as homicide or sex offenses.

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