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How can I get my arrest changed to a detention?
Anonymous4 views3 answers
In June of 2010 I was arrested for a DUI. The results of my blood test showed a .06 and no drugs. No charges were ever filed and I never lost my license.
CA Penal Code 849.5 states:
849.5. In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.
The arresting agency has refused to comply with this, despite repeated requests. My job involves a security clearance, and this is causing major problems.
How can I force them to comply? Am I eligible for any monetary redress from the agency?
You need to apply for a finding of factual innocence. Under California Penal Code Section 851.8, an attorney can make a motion for a declaration of factual innocence and an order for the sealing and destruction of arrest records. Such a motion will be granted if the trial court finds “that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.” You have done the first step which is contact the agency that arrested you now you need an attorney for the second.
Robert Driessen
At a minimum, you can likely get t the arresting agency to issue you a certificate of detention. You are already, legally speaking, able to say that you have never been arrested. A petition for a factual finding of innocence is a more difficult remedy, but a good one. Consult an experienced lawyer about it.
Consult with an attorney immediately. There are important time limits to what you can do. A factual innocence motion for example must be made within 2 years of the arrest. You are running out of time.
