When Does an Arrest Become a Detention?

Following the recent Court of Appeal case, Schmidt v. California Highway Patrol, 1 Cal.App.5th 1287 (2016), law enforcement agencies should be aware that, under certain circumstances, if an individual is arrested and later released without the filing of criminal charges, the arresting agency is required to take four affirmative actions. The affirmative actions include:

  1. Issuing a detention certificate to the arrestee;
  2. Deleting any references to the arrest in the agency’s records;
  3. Notating or appending the arrest report to reflect that the arrest was “downgraded” to a detention; and
  4. Reporting the “downgrade” to the Department of Justice.

Schmidt involved an arrestee’s class action against the California Highway Patrol for a writ of mandate to compel the CHP to comply with statutes requiring issuance of a certificate describing an arrest as a detention when no accusatory pleading is filed. Id. at 1290. Schmidt was arrested for driving under the influence, booked into jail, and released later that day on his own recognizance after signing a notice to appear in court. After sending the arrest report to the District Attorney’s office, the District Attorney decided not to file charges “at this time.” The CHP neither provided Schmidt with a detention certificate nor reported the arrest as a detention to the Department of Justice.

The CHP argued that the issuance of the notice to appear to the arrestee constituted a criminal filing that eliminated the requirement to downgrade the arrest to a detention.  The Court of Appeal considered this argument and rejected it, holding that Penal Code § 849.5 required the arresting agency to take the four affirmative steps.

The Court of Appeal upheld the trial court’s issuance of a writ of mandate requiring the CHP to (1) issue certificates of detention to the class members; (2) delete any references to the action as an arrest from each member’s arrest records of the CHP and make written notice of each class member’s case disposition to the Bureau of Criminal Identification and Investigation records of the Department of Justice; (3) include a record of release for each class member; and (4) mail certificates of detention to individuals who fell within the definition of the class, but arrested by CHP after June 1, 2012. Id at 1292. The court also upheld the trial court’s award of attorney fees pursuant to Code of Civil Procedure section 1021.5. Id at 1293.

As a result of the Court of Appeal’s ruling in Schmidt, law enforcement agencies throughout the state should confer with their counsel to determine what specific actions should be taken for arrests that fall within the statutory definitions of Penal Code §§ 849(b)(1), 849(b)(3), and 849.5. Complying with the statutes now can avoid future litigation and the potential that a public entity could be liable for a plaintiff’s attorney’s fees.

While prisons and jails do not usually arrest people, since their residents have already been arrested, booked, and often convicted too, information about the ruling in Schmidt is useful to know. The ramifications of this decision may be more wide-reaching than indicated by the court. For example, state prisons allow assignment of an “R” suffix for an inmate with history of sex-related offenses based solely on an arrest, depending on the details of the incident; however, it will be interesting to see whether additional challenges to this label occur when the encounter is downgraded from an arrest to a detention.

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