Arrested by the CHP, But No Case Filed? DOJ Record Updated?
What such motorists often overlook is the insidious damage the arrest has caused to their criminal history. Very often, law enforcement does not follow Penal Code §§ 849.5 and 851.6 to update the driver’s criminal history to change the record with the DOJ from an arrest to a detention. Thus, the individual is scarred, often leading to adverse employment consequences, denial of loans, rejection for admission to certain schools, denial of the ability to rent or lease property, etc.
John J. Schmidt experienced this first-hand in Santa Barbara County. On May 1, 2011, he was arrested by the CHP for driving under the influence. He was arrested by the CHP for driving under the influence. He was booked at the Santa Barbara County jail and released the next day. He signed a promise to appear in court.
The CHP then sent its arrest report for Schmidt to the Santa Barbara County District Attorney’s office. The district attorney’s office decided not to file charges.
The CHP did not provide Schmidt with a certificate describing his arrest as a detention as provided for at Penal Code § 851.6(b). The CHP also did not update the arrest, which has a certain stigma of guilt, as a detention to the Department of Justice (DOJ).
Schmidt learned about these problems on his own when he looked at his own criminal history, perhaps by submitting to a Live Scan of himself. He was outraged and suspected this was systemic failure or even a regular practice by the CHP.
He then hired an attorney and brought a civil class action case against the CHP. The class consisted of all those people arrested by the CHP in Santa Barbara County, taken into custody, booked, released from custody, and who did not have an accusatory pleading filed against them in the Santa Barbara County Superior Court and who did not receive a certificate of detention from the CHP and did not receive a disposition notice that the action was a detention only on their criminal record maintained by the California Department of Justice.
The compliant sought an order that the CHP issue such a certificate of detention, as required by Penal Code §§ 849.5 and 851.6 and then update the records with the DOJ. The trial court agreed with Schmidt that the CHP did violate this statutory duty and issued the order Schmidt requested. The court also awarded Schmidt attorney fees for his class action. Such fees were sought under California Code of Civil Procedure § 1021.5, the Private Attorney General Act (PAGA), in the amount of $296, 100.
The CHP appealed the trial court’s ruling to the Second Appellate District, in John J. Schmidt v. California Highway Patrol (2016 DJDAR 7887).
The CHP argued that the trial court misinterpreted Penal Code §§ 849.5 and 851.6. The CHP argued that the word “released” as used in §§ 849.5 and 851.6 meant released without any obligation to appear in court. It also argued that the term “pleading” included a CHP-issued “Notice to Appear” and that “filed” meant a police report provided to a District Attorney to review for a criminal complaint.
The First District called such arguments “fanciful” and suggested they bordered on frivolous. Moreover, the arguments suggested law enforcement had the same powers as a prosecuting attorney, which certainly is not true.
The appellate court seemed almost angry at having to consider the frivolous arguments made by the CHP, commenting, “we give the words of a statute their plain, common sense meaning.” California School Employees Assn., Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148 Cal. App. 4th 510, 517. Here, the court held, the language of the statutory is clear and unambiguous.
Applying this plain, common sense meaning, a person is “released” when free to leave police custody, whether the person is released on a notice to appear, on bail or on own recognizance.
A “notice to appear” is only a pleading if filed with the court. Heldt v. Municipal Court (1985) 163 Cal. App. 3d 532, 539.
In short, the appellate court affirmed that Schmidt is entitled to have his arrest deemed a detention under § 849.5, entitled to a certificate from the CHP describing the action as a detention (§ 851.6(b)); and is entitled to have his arrest deleted from the records of the CHP and the Department of Justice and have any record of it refer to it as a detention (not an arrest), pursuant to Penal Code § 851.6(d).
We like this ruling. If an arresting agency makes a mistake in its decision to arrest someone, they should “clean up their mess,” and simply follow the law.
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