For people stopped by law enforcement on suspicion of drunk driving, there’s a big legal ​— ​and practical ​— ​difference between being “arrested” and being “detained” without subsequent charges being filed. But according to a panel of three appellate court judges in Ventura, the California Highway Patrol (CHP) has steadfastly refused to recognize this distinction. Worse, they found the CHP violated state law requiring law enforcement agencies notify the California Department of Justice when no charges are brought against the persons they “arrested” and indicate they have merely been detained.

On August 1, the Court of Appeal ruled emphatically in favor of the 187 members of a class-action lawsuit brought against the CHP by attorneys Bill Makler and Robin Unander, and “commanded” the CHP to issue certificates of detention to the 187 affected individuals, delete all references to their arrests from their arrest records, and conduct a thorough records search to ensure no other arrestees should be designated as detainees.

The case started when CHP officers arrested college student John Schmidt in 2011 on suspicion of DUI. He was arrested, booked, and released on his own recognizance. The District Attorney, however, declined to file charges because Schmidt’s blood alcohol level ​— ​0.05 percent ​— ​was well below the legal limit of 0.08. And he had no previous record. If prosecutors do not file charges within 25 days, state law requires such arrests be recorded as detentions. The difference is big, according to Schmidt’s attorney Makler. “If you’re looking for a job, and you know this is going to show up on your record as an arrest, you might not even apply,” he said. Job applicants are often asked whether they’ve been “arrested” before but rarely if they’ve been “detained.”

Attorneys for the CHP protested the words “accusatory pleadings,” “filed,” “arrested,” and “released” were ambiguous because of changes in criminal procedure over the past 40 years. The judicial panel dismissed this objection as a “fanciful argument,” adding, “The language of the statute is clear and unambiguous.” The court added, “The CHP should take note that the Santa Barbara Police Department complies with the code section without difficulty.” The appellate court decision was technically almost identical to a ruling issued three years before by Superior Court Judge Thomas Anderle.

The appellate judges also affirmed the $296,000 in attorneys’ fees Anderle awarded Makler and Unander. Attorneys for the CHP objected to the attorneys’ fees, insisting no social benefit accrued from the litigation. “Society as a whole benefits when enforcement agencies properly interpret and implement the law,” the judges replied. Makler said the CHP could still seek review by the California Supreme Court. Assuming the ruling stands, Makler said he expects the CHP will amend its practices to encompass the whole state. Calls to attorneys for the CHP were not answered by deadline.


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