Although many arrests in California result in prosecution, an arrest does not automatically result in prosecution and many cases never go beyond the initial arrest. Under California law any person arrested but not charged may be eligible to receive a certificate describing the arrest as a detention. Law enforcement is often unaware of the controlling statutes and does not automatically prepare the documents necessary to deem an arrest a detention only unless prompted. However, with a little persistence a record of arrest can be changed.
Under California Penal Code section 851.6 there are three situations in which a person is entitled to a certificate of Detention:
1. Any case in which a person is arrested and the arresting officer is satisfied that there are insufficient grounds for making a criminal complaint against the person.
2. Any case in which a person was arrested only for being under the influence of a controlled substance or drug and the person was delivered to a facility or hospital for treatment and no further proceedings are desirable.
3. Any case is which a person is arrested and released and no accusatory pleading is filed charging that person with an offense.
Once a certificate is granted, any reference to the action as an arrest shall be deleted from the arrest records of the arresting agency and of the Bureau of Criminal Identification and Investigation for the Department of Justice. At that point any record shall refer to it as a detention.
By far the third situation described is the one I have seen most in my practice. Often a law enforcement officer will determine probable cause to make an arrest and take a person to jail. Once a police report goes to the local district attorney’s office a Deputy DA may determine that there is not sufficient evidence for prosecution and reject the case. At this point a person is clearly eligible for a Certificate of Detention.
With that information in mind any individual seeking a certificate of detention should still proceed with caution. After all, the law allows law enforcement to change its mind and file a criminal action within the statute of limitations. Pursuing a certificate of detention before the statute of limitations has run is a risky proposition because it could cause the local district attorney or law enforcement to revisit the case and change the decision to file a criminal action. Any person seeking to have an arrest deemed a detention only should always first consult with an experienced criminal defense attorney who is familiar with the practices of local law enforcement agencies. An experienced attorney can confirm that a statute of limitations has run and assess any other criminal liability before pursuing a certificate of detention. The attorney can then assist you with contacting the appropriate individuals within the particular agency to help you secure your certificate of detention.