CHP Violated California Arrest Record Law


CHP Violated California Arrest Record Law

Sep 30 2016, by Jessica McElfresh in Criminal Convictions, Criminal Defense, Legal Blog

Like many others, you may have initially been taken into police custody under suspicion of a DUI or another offense but never had any charges pressed against you. You may still be living with the arrest on your California arrest record because of this incident. But most people do not realize that under California law, if charges are not filed against you, an “arrest” must be marked as “detained” by police. The difference between being arrested and detained matters a great deal when it comes to passing background checks for school, work, loans, and apartments.

This inaccurate reporting became the reason behind a recent class action lawsuit of more than 150 people, filed against the California Highway Patrol. The plaintiffs argued the CHP recorded arrests when no charges were ever brought against these people. In August 2016, a California Court of Appeals ultimately ruled the plaintiffs were right and that the CHP violated state law when it did not update these records to show them as detainments instead of arrests.

If you have an arrest on your California arrest record that never resulted in charges, call San Diego criminal attorney Jessica McElfresh right away at (858) 756-7107. You may be able to have this incident expunged.

California Law §849.5

The California Penal Code specifically states that in any case in which a person is arrested, released, and no charges are filed, the person’s arrest record must also show their release. Afterward, the incident will not be deemed an arrest, rather as only a detention.

This distinction is important. When a future employer or other party runs a background check on you, it will depict your criminal record including detainments, arrests, and convictions. A detainment by police can easily be explained as a misunderstanding. After all, the prosecution clearly did not find enough evidence to charge you with a crime. However, an arrest can make you look guilty of something even if there was no corresponding conviction. Ensuring an incident is properly reported can be crucial to your future.

The Class Action Lawsuit

The lawsuit began with one man, John Schmidt, who realized his arrest from 2011 on suspicion of a DUI was not updated by the CHP to reflect a detention. He filed to create a class action lawsuit and represent other potential victims in 2012. Schmidt won at the trial level and the CHP was told it must update records going back to June 2009 to ensure anyone who did not have charges pressed against them were accurately marked as detained and not arrested. The three-judge panel for the appellate court affirmed that decision.

Expungement in California

This lawsuit applies only to the CHP, which means if another law enforcement agency in California arrested you but never updated your record to reflect a detainment, you will need to find help another way – through what is commonly known as expungement. If you were arrested in California but no charges were filed, charges were later dropped, or you were acquitted, you may be eligible to have your records sealed. Once your California arrest record is sealed, a future employer or someone else running a background check will not be able to see the incident.

Call McElfresh Law for Help

San Diego criminal attorney Jessica McElfresh understands how frustrating it can be for hardworking people to try and get ahead but be held back because of an arrest on their records, particularly when that arrest should really be marked as a detainment. If you were arrested but charges were never filed, call McElfresh Law today at (858) 756-7107 or contact us online to learn how you can clean up your record.