Tuesday, October 6 , 2015, 10:26 am | Fair 64º

In Class-Action Lawsuit, Santa Barbara Judge Decides CHP Must Update Criminal Records

By Gina Potthoff, Noozhawk Staff Writer | @ginapotthoff |

A recent ruling by a Santa Barbara judge could have statewide implications for law enforcement agencies not following a particular statute — the California Highway Patrol among them.

The process of notifying someone arrested for a crime but not actually prosecuted for the alleged illegal act has been written into California penal code for all agencies since 1975, but the recent case highlights the CHP’s failure to adhere to that law.

Santa Barbara Superior Court Judge Thomas Anderle last week ruled in favor of a plaintiff who was arrested near Santa Barbara in May 2011 on suspicion of driving under the influence.

Although the man was booked into County Jail and later released, with a notice to appear in court, the District Attorney’s office decided against filing criminal charges.

The CHP never updated the man’s criminal record to reflect he had been “detained” instead of arrested, as required in Penal Code Section 849.5, according to Anderle.

The man filed suit in May 2012 to get an official writ of mandate against the CHP and turned the case into a class-action suit, believing others were impacted.

After hearing from both sides, Anderle ruled the CHP must give the plaintiff an official certificate of detention and that all arrest records maintained by the California Department of Justice should be updated accordingly.

The judge also ordered the CHP to go back through its records to find and send detention certificates to anyone else arrested and released without formal charges since June 2009.

Nearly 200 people could be impacted, Anderle wrote in his judgment, and all records must be updated by Sept. 15.

Although the case was specific to the CHP, the ruling broadly applies to all enforcement agencies, many of which already adhere to the code, said William C. Makler, a Santa Barbara attorney who represented the plaintiff.

Santa Barbara Police and the County Sheriff’s Department voluntarily follow the statute, he said.

“I think that’s the important point,” Makler told Noozhawk.

“The CHP is a little bit the outlier. They wanted to apparently be told by a judge. The agency has to change the way it operates statewide.”

Makler said this was the first case of its kind. He didn’t want to share details about his client because the point of the suit was to relieve him from the stigma of being arrested.

A job search is difficult when one has a criminal record including an arrest, which implies being shackled in handcuffs for doing something wrong, he said.

“When you’re detained, it doesn’t imply that you’ve done anything seriously wrong,” Makler said.

“These 200 people, wherever they are, wouldn’t even know that they did not suffer, legally speaking, what would be considered an arrest. People have a right to know about these remedies.”

The CHP could appeal the decision. Attorney General Nancy James, who represented the agency, could not be reached for comment Tuesday.

According to the ruling, James argued against issuing the detention certificate, focusing on what the term “released” means and when in the process a person is officially released.

The CHP contended that “release,” under the code specified, occurs before prosecutors decide to file charges, and that historical context shows the code would apply only to those arrested and released due to lack of evidence supporting probable cause.

In this case, the DA’s office didn’t file formal charges because of the plaintiff’s low blood-alcohol content and otherwise clean record.

Anderle disagreed, dismissing the CHP’s arguments as unsupported by law and facts.

Noozhawk staff writer Gina Potthoff can be reached at .(JavaScript must be enabled to view this email address). Follow Noozhawk on Twitter: @noozhawk, @NoozhawkNews and @NoozhawkBiz. Connect with Noozhawk on Facebook.

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