What to Do if One Has a Detainer or Hold in Prison

It is not uncommon for an inmate within a California prison to have open charges pending in another court within California, another state or even in federal court, including with an active bench or arrest warrant. The charges may arise from a traffic violation, a probation or parole violation or even false charges by someone using the inmate’s identity. Issues about extradition to another state arise and complication parole or post-release community supervision.

We receive phone calls quite frequently about what that person can do to try to lift the “hold,” also known as a “detainer,” on the inmate before he or she finishes his time on the current offense. A detainer is an order that requires the California Department of Corrections and Rehabilitation (CDCR) or jail officials to give notice of a person’s release date so the prosecutor or law enforcement agency will have an opportunity to take custody of the person and prosecute the charges.

Callers ask us if the inmate can get “time served” on the pending charges or be able to serve the time concurrent with the current sentence. We explain that this is a good idea because it may help the inmate be accepted into certain rehabilitative programs and / or be housed at a lower security level. Moreover, it helps one plan for living conditions after one’s release and reduces uncertainty about one’s post-prison life.

This article is meant to answer such questions more fully, but it does not answer what one needs to do if there is a hold assert by Immigration and Customs Enforcement (ICE).

We think it is prudent to at least have the inmate or the inmate’s family reach out to an experienced criminal defense attorney to liaison with the prosecuting agency to find out if such charges can actually be resolved while the inmate remains in custody on his current sentence. Often times, we have found that this can be accomplished, although it may take many phone calls and a few letters.

Before making such phone calls, it is important to discuss the case facts with the inmate or the inmate’s family, as there may be a statute of limitation about to expire for filing or other good reasons not to alert the prosecuting agency and cause them to file the case, if an arrest warrant is the issue. Certain witnesses may also have reasons to help the prosecutor, so silence may be better than a proactive phone call. Evidence may also be destroyed or lost over time, which should be considered.

Sometimes, as the reader of this article may already know, filing and serving a Penal Code § 1381 Notice and Demand for Speedy Trial is smart, as it obligates the prosecutor to bring a case to trial within 90 days after receiving such a demand. The notice must state where the person is incarcerated and state that the person wants to be brought to trial. See Reynolds v. Superior Court (1980) 113 Cal. App. 3d 510, 514, 169 Cal. Rptr. 868 (notice sent to court clerk but not to district attorney was insufficient); but see Smith v. Superior Court (1984) 159 Cal. App. 3d 1172, 1176 206 Cal. Rptr. 282 (notice that was not endorsed by a prison official was still valid, where the form provided to person in prison did not contain a place for endorsement or notice that an endorsement was necessary).

It is usually in a person’s best interest to file a § 1381 demand as soon as possible after learning about any unresolved charges because if the prosecutor allows the 90 days to pass, the inmate can file a Motion to Dismiss the Case under Penal Code § 1381. Section 1381 also applies to individuals serving time in county jail and juveniles incarcerated in the CDCR Division of Juvenile Justice (DJJ) and persons civilly committed for narcotic addiction. See Chavez v. Superior Court (1984) 153 Cal. App. 3d 130, 131-132, 200 Cal. Rptr. 75 (90-day timeline applied even when person has less than 90 days to serve when filing request for trial).

Penal Code § 1381.5 provides speedy trial rights for people in federal prisons facing California criminal charges, so long as they are incarcerated in a federal prison located in California.

It is wise to keep in mind that even if a felony case is dismissed under 1381, it can be refiled, as there is no one-dismissal rule that does apply to misdemeanors.

For a probation violation charge, a person can request disposition under either Penal Code § 1203.2a (serving time on such violations concurrent with the underlying case) or Penal Code § 1381 even if there was no detainer issued.

For federal or out-of-state criminal charges, the Interstate Agreement on Detainers (IAD) process for requesting disposition cannot be used unless a detainer has been filed. However, a person can send a demand for a speedy trial to the prosecutor for the charging jurisdiction based on the federal constitutional right to a speedy trial or to due process.

For outstanding traffic tickets pending, California Vehicle Code § 41500 provides that a person incarcerated in a California prison cannot be prosecuted and cannot have a driver’s license suspended, revoked or refused for any non-felony traffic tickets that were unresolved at the time they are committed to the CDCR. This means that the traffic ticket must be dismissed. The purpose behind this law is to allow the newly-released inmate the legal ability to drive to work, rehabilitation programs, etc., as life outside prison can be overwhelming enough without the ability to drive.

One court has held that the constitutional right to equal protection is not violated by denying this benefit to people serving felony terms in county jails. People v. Lopez (2013) 218 Cal. App. 4th Supp. 6, 160 Cal. Rptr. 3d 678.

There are a few exceptions; a non-felony traffic offense may still be prosecuted if it involved reckless driving, driving under the influence, or causing bodily injury while driving under the influence, or if it is a type of offense that would require the Department of Motor Vehicles (DMV) to immediately revoke or suspend a driver’s license upon conviction.

This article would not be possible without reference to the excellent treatise written by the Prison Law Group, “California Prison and Parole Law Handbook,” which is available online.