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A switchblade is a serious and deadly weapon. Possession of one under any circumstances is a criminal violation under Penal Code Section 21510.
Elements of PC 21510
Possession of a switchblade is unlawful but there are elements of the crime that the DA must prove beyond a reasonable doubt:
- You had knowledge or were aware that you were carrying or possessing a switchblade
- On your person or in your car
- And you knew that it fit the legal definition of a switchblade or had the characteristics of one
Possessing the weapon means that you had control over it. It only has to be in your jacket or coat or in a handbag and you were aware of its presence.
PC 21510 makes it clear that it is illegal to possess or carry a switchblade under the following circumstances:
- On your person
- To sell or offer to sell or expose it for sale
- To give or loan a switchblade to anyone
- To have the knife in the driver or passenger side of a motor vehicle while in a public place or place open to the public
To be convicted of carrying or possessing a switchblade, the knife must fit the legal definition:
- A knife with the appearance of a pocketknife
- With a blade or blades that is at least 2 inches in length
- That can be released automatically by flicking your wrist, pressing a button or applying pressure on the handle or by any other type of release mechanism
Other knives that fit the legal description of a switchblade are gravity knives, spring blades and Springer or snap blade knives. Butterfly or batanga knives are also illegal as they are folding pocket knives. Ballistic knives are in a special category under PC 16220 and 21110.
However, certain knives that closely resemble switchblades are not included and are exceptions to this code section. These are:
- A knife that opens with one hand
- Where thumb pressure is applied solely to the blade
- Or to a thumb stub attached to the blade
- And so long as the knife has some mechanism such as a detent that provides resistance in opening the blade or biases the blade back to its closed position
A detent is a mechanism or catch that prevents motion or resists it until released by applying force to one of its parts.
Most pocket and folding knives are not switchblades, however, it is illegal to carry any of these if the knife is in public view and is in a locked position.
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The Weapon is not a Switchblade
One of the major defenses if you are suspected of violating PC 21510 is that the knife lacks the characteristics of a switchblade. If it has a detent or offers resistance to opening it, it is not a switchblade though it may resemble one to most persons. If it has any kind of device or mechanism that offers resistance to opening it, then it fails to come under this code section and is legal to carry so long as it is not open and in a locked position.
Lack of Knowledge of its Presence
If you can show that you had no knowledge the switchblade was in your jacket or bag you were holding or in the car you were driving, then this element of the offense is lacking. Though the burden of proof is on the prosecution, you will have to offer some evidence that the jacket, coat, bag or car belonged to someone else and you were borrowing it, or that someone else had been in possession of it before you possessed it or were detained by law enforcement.
If you knew you were carrying a knife, the DA does have to prove you knew it was a switchblade or fit the legal definition of one.
Illegal Search and Seizure
You cannot be detained or told to offer yourself or vehicle to be searched absent a search warrant or probable cause to perform the search by a law enforcement or peace officer. The office must have a reasonable suspicion or evidence that you committed a crime or were about to commit one. If you are stopped for a traffic violation, the officer has no right to search you or your car unless you consent or you assault or attempt to assault the office and are arrested.
If you are arrested, the officer can search you incident to the arrest. Even if a search warrant is issued, it is invalid if based on an officer’s fabrication of probable cause or if the search exceeded the scope of the warrant.
Violation of PC 21510 is a misdemeanor with the following possible penalties:
- County jail time of up to 6 months
- And/or a fine up to $1000
- Or summary probation with or without jail time
Jail time is likely if any of the following aggravating circumstances occur:
- You have a criminal history
- You intended to use the switchblade
- You are a gang member or were engaged in gang activity
- You resisted arrest or were otherwise uncooperative
If you were carrying a ballistic knife, which is a type of spring load knife, you are committing a misdemeanor though the possible county jail time is up to one year instead of 6 months.
Expungement of your conviction under PC 21510 is possible since violation is a misdemeanor and does not include serving time in state prison, the main determining factor in whether you can expunge a conviction.
Expungement is offered under PC 1203.4. Although a misdemeanor conviction does not carry the ignominy and serious obstacles to finding suitable employment, housing or qualifying for public benefits or denial of your Second Amendment right to own or possess a firearm if convicted of a felony, you will want to seek an expungement since your conviction will not appear on any public database.