For member agencies that have police departments, the recent case of Schmidt v. CHP (2016) 1 Cal. App. 5th 1287, serves as a reminder of the potential exposure to civil litigation if your agency is not complying with the Penal Code as it pertains to paperwork detailing arrests and detentions.

In Schmidt, the Plaintiff brought a class action against the CHP asking the Court to issue an order requiring the CHP to comply with sections 849.5 and 851.6 of the California Penal Code.  The trial court certified the class, granted the request, and awarded Plaintiff almost $300,000 in attorneys’ fees.  The decision was then upheld by the Appellate court.
In Schmidt, the CHP arrested Schmidt for driving under the influence.  He was taken to jail and released the next day.  No accusatory pleading was ever filed by the District Attorney’s office.  Although Schmidt was not prosecuted, he was never given notice that his arrest was considered a detention nor was his criminal history updated to reflect this. The Appellate Court found that the statute is unambiguous and upheld the trial court’s decision ordering the CHP to comply with the applicable Penal Code. 
The key takeaway from the case is for police agencies to ensure they are doing the following when a person is arrested and released and no accusatory pleading is filed charging the person with an offense:

  • Ensure that the arrest record includes a record of the release and that the arrest is no longer deemed an arrest, but is instead listed as a detention only. (Penal Code § 849.5.)
  • Ensure that a certificate is issued by the law enforcement agency that arrested the person describing the action as a detention.  (Penal Code § 851.6)
  • Ensure that any reference to the action as an arrest be deleted from the arrest records of the arresting agency and from the Bureau of Criminal Identification and Investigation of the Department of Justice.  Any such record of the action should thereafter refer to the arrest as a detention.  (Penal Code § 851.6(d).)   

If you do not know if your agency is complying with the above requirements, pass this along to someone who does know so you can help ensure that your agency does not get caught up defending a lawsuit like the one brought by Schmidt.

Questions?  You may contact Mike at:
916.850.7300
mpott@csac-eia.org

View the Justia Opinion Summary and Published Decision