Convert Arrest Into Detention: Not filed Los Angeles DUI Cases or Los Angeles Criminal Cases.

May 14, 2019

Convert Arrest Into a DetentionLos Angeles DUI attorney can help you convert an arrest into a detention for cases that are not filed in Los Angeles.  If you are arrested for a crime or for a DUI, your record, if requested for the Department of Justice, will have a record of the arrest.

Sometimes a job application or an application for benefits or a permit or a license will ask you if you were arrested.  This is different then asking if you have any convictions, which are findings of guilt proven beyond a reasonable doubt!  Instead, an applications can asks for arrests, which require much less evidence then convictions.  The arrest decisions are made by a police officer who can be biased against you.  Because evidence needed for an arrest is lesser then the evidence needed for a conviction, more people get arrested then get convicted of crimes.  Here Los Angeles DUI lawyer explains how to convert an arrest into a detention.

Some applications will ask for arrests even when an arrest for one crime can be filed as a charge for a different crime or not at all.  Sometimes you can hear police officers say “I am charging you with a crime”.  This is incorrect statement of law because police officer has no power to charge a crime.  He can only arrest someone for a crime, and even then, only with a supervisor approval.  Some cases go through a lengthy delay between an arrest and a filing.  Also, many professional license boards will look at arrest report, without a conviction, to decide if the arrested person should be disciplined and possibly if his or her professional license should be taken away.  For those reasons, it is extremely important to make sure your arrest is converted into a detention.

A criminal case can’t be filed once the statue of limitation has expired.  Most DUI’s can’t be filed after one year past arrest unless it was a felony DUI.  After the statute of limitation has expired, a criminal case can never be filed and because it can’t be filed, it should be called a “detention”.   Similarly, an arrest for a case that was rejected from filing by the prosecutor should also be called a “detention”.  Detentions are very different from arrest because unlike arrest, they do not have to have “a reasonable suspicion that the person committed a crime” to be valid.  For example, a detention can happen when a police officer wants to know who you are or wants to make sure you are not carrying something illegal.  Because it is so easy to get detained, detentions, unlike arrests, do not carry stigma and often do require disclosure.  Also, detention should say that they are detentions and not arrest on the Department of Justice permanent record for a person (“rap sheets”).


California Penal Code Section 849.5 states “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”.  Please contact our office to make sure we can convert arrest into a detention.  Los Angeles DUI attorney will make sure your record is kept clean.

If prosecutor does not file a criminal case, (as sometimes is the case), you can convert arrest into detention and modify Department of Justice record to delete arrest from your “RAP” sheet.  Once your arrest is converted into a detention, the question “if you were ever arrested” can be honestly answered as a “no”.  Penal Code section 849.5 suggests that any case that wad rejected or non-filed can be converted into a detention.  California Judicial Counsel of California information printout (CR-409-INFO) instructs to contact the court to deem an arrest a detention.  Better practice is to first point out that directly to the police and only if that does not work to apply to the courts directly.

If you were arrested for a Criminal Case or DUI in Los Angeles, please contact our office (818) 921 7744 as soon as possible to talk about your case.  On appropriate facts, we can convince the prosecutors not to file a criminal case against you, thus assuring that your record remains clean and clear of the arrest.  Los Angeles DUI attorney can use PC 849.5 to covert arrest into a detention for not filed DUI cases.  Once your Los Angeles DUI arrest is converted into a detention you can honestly answer that you were never arrested for a DUI.  This is important because some application for employment or benefits ask specifically if you were ever arrested.  Once your arrest is converted into a detention, the police agency has to correct its record and correct DOJ who will in turn contact the FBI and correct its record.  It is always a good idea to get copy of your DOJ printout after the arrest is converted to detention.  This can be done at any live-scan facility.   If your arrest still shows up as an arrest,  please consider hiring us to fix that and to contact the DOJ to make sure you do not have an arrest on your record.  Court of Appeals addressed this issue in Schmidt v. CHP in 2016 and ordered the CHP to notify the DOJ of converting arrest into a detention and to issue a certificate of detention to Schmidt (he was arrested for a DUI but there was no bad driving and his BAC was low).

2018 Addition To The Law. 

On January 1, 2018 the legislature passed a law that authorizes court to seal your arrest record.  Now, under California Penal Code section 851.91 and 851.92 the court must seal the arrest record under many circumstance and may seal it in the interest of justice.  The sealing of the arrest record allows a defendant to honestly answer that they were never arrested except when filling out applications for a public office, a police officer employment, state and local licensing or state lottery commission.  There is a slight conflict in the logic when comparing a PC 851.91 and PC 849.5.  The conflict is that under a PC 851.91 an arrest can be sealed for cases that were never filed.  However, under PC 849.5, all arrests that are not filed as criminal cases in court are deemed detentions.  Sealed arrest needs to be disclosed under some circumstances, however, a detention is not an arrest and therefore does not need to be disclosed.  Consequently, a person who filed a PC 849.91 after a case is not filed might be in a worse situation then a person who did not file it because a PC 849.92 order obligates a person to answer that he was arrested in some circumstances wheres without a PC 849.92 order a person can simply rely on PC 849.5 and state that he was never arrested (just detained).   Also, the arrest record can not be sealed without judges approval.  Under PC 849.5, there is no requirement for a judge to do anything,  it is so just because.

Recent changes to California law allows an application to seal arrest record after completion of a prefiling diversion program under California Penal Code section 851.87.   Contact our office to talk about how we can help you seal your arrest record.

For all questions related to Los Angeles DUI arrest record sealing call our office.

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4 responses to “Convert Arrest Into Detention: Not filed Los Angeles DUI Cases or Los Angeles Criminal Cases.”

  1. Great article. I received a detention certificate due to PC 849.5. The arrest comes up on my DOJ rap sheet. How can I get them to change this. I live in Sonoma County and the DA has refused to update the DOJ. What recourse can I take?

    • Hello Toni,

      Usually, the DOJ rap sheet codes arrest and detentions under one heading (“arrest/detention” instead of “arrest”). Because you were detained – “arrest/detention” could be accurate. Having said that, you can contact the DOJ directly (do a livescan first) and then request a hearing.

  2. Daniel says:

    How about sealing of “detention only” record with PC 851.91 sealing? Is that possible? If that is done what will DOJ rap sheet show?

    • Daniel,

      Technically, a PC 851.91 order converts an “arrest” into a “detention”. But, if a PC 851.91 petition is filed after only an arrest, and the court grants it, the “court order” will “seal” the underlying record. For what it worth, it will not hurt and potentially make the record better (more innocuous). I, unfortunately, don’t know how the DOJ record will read after that.

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