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<b>BACKGROUND CHECKS:</b>  Attorney Bill Makler scored a major victory in a legal battle with the CHP over what constitutes an arrest versus a detention. 

Paul Wellman (file)

BACKGROUND CHECKS: Attorney Bill Makler scored a major victory in a legal battle with the CHP over what constitutes an arrest versus a detention. 


CHP Ordered to ‘Un-Arrest’ Hundreds

DUI Charged but Not Prosecuted Should Net a Clean Record


On May Day three years ago, John Schmidt was just another college kid from San Diego who visited Santa Barbara only to get arrested for driving under the influence by the California Highway Patrol (CHP). Although Schmidt would spend the weekend behind bars in Santa Barbara County Jail, prosecuting attorney Lee Carter would decline to file charges. Because Schmidt’s blood-alcohol count was low ​— ​and he also had a good driving record ​— ​Carter concluded the likelihood of successful prosecution was too low. At that point, most law enforcement agencies throughout Santa Barbara County and California would have expunged the arrest from Schmidt’s record, noting instead that he’d merely been “detained.” But the CHP is not most agencies, and for decades it’s bucked a state law passed in the 1970s to redress the social stigma experienced by those arrested but never prosecuted.

Last week, however, after a three-day trial that concluded August 8, Judge Tom Anderle ruled that the CHP scrub Schmidt’s record in accordance with state law. More dramatically, Anderle ordered the CHP to do the same thing for 187 other individuals in Schmidt’s boat. That’s the number of people Anderle concluded the District Attorney declined to prosecute even though they’d been arrested by the CHP between June 2009 and the present. “When you think of the Internet and search tools that we can now use to find out embarrassing information on just about anybody, this is really big,” said Bill Makler, who, along with Robin Unander, represented Schmidt in what evolved into a class-action lawsuit against the CHP. Such information is routinely used by prospective employers in evaluating candidates for various jobs. “This means someone need not be followed around for the rest of their life by inaccurate information,” said Makler. “It means that people like my client can now answer they’ve never been arrested without fear of committing perjury.”

Efforts to contact Nancy James, who represented the CHP in Anderle’s courtroom, proved unsuccessful. It remains to be seen whether the CHP or the Attorney General will appeal. “This case was not routine and involved significant and important issues,” Makler noted. He also commented that the issues were “vigorously litigated” by both sides.

The CHP insisted that arrests made by its officers constitute legitimate arrests whether or not prosecutors subsequently file charges. Unless the individuals arrested are found to be factually innocent ​— ​“the wrong-man scenario” ​— ​the CHP has refused to change the official records. During the trial, prosecuting attorney Lee Carter testified why he declined to press charges. Anderle noted, “The fact that the DA filing officer was competent and thorough provides persuasive evidence that there were adequate reasons to justify his decision.” He added, “Suggestions to the contrary are not embraced.” Likewise, Anderle rejected arguments made by the CHP’s attorney that a higher threshold of exoneration “is unsupported by the law and the facts.”

Because Anderle’s ruling is not a published legal opinion, it is not binding on other courts. But to the extent it provides guidance in similar cases filed in the future, it could prove significant. If Santa Barbara’s statistics reflect statewide realities, as many as 6,000 state residents a year could be eligible to get their arrest records scrubbed.

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