California Penal Code Section 849.5

Asked almost 2 years ago - Sunnyvale, CA

I am confused about this Penal code section which 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."
Does this means that a detention is different from arrest and may not be marked as arrest in various government forms ?

Attorney answers (3)

  1. Russell A. Wyatt

    Contributor Level 10


    Lawyers agree

    Answered . A detention results when you have contact with law enforcement and you are not free to leave. Such as a speeding ticket. When the officer pulls you over you are not free to leave but you are not going to jail. An arrest occurs when the officer has probable cause to believe you have committed a crime. This does not always result in jail time, but you will sign a promise to appear and get released or you can find yourself in jail. If you are only detained you are not subject to search, but if you are arrested the officer may insist on searching you for weapons before taking you to jail. This is important because you can refuse a search if you are only detained. I know that goes outside of your question's scope, but i find most people don't know that.

    These materials have been prepared by the Law Office of Russ Wyatt for informational purposes only and are not... more
  2. Sedrak Yenikomshuyan

    Contributor Level 9


    Lawyers agree

    Answered . A "detention" is different from an "arrest". The record of arrest will still exist along with a record of release - however, that does not necessarily mean that a government form will not list it as an "arrest" for legal purposes.

    If you are still confused, your best bet is to call an attorney for further clarification.

    Disclaimer: Please note that this is not legal advice, but informational, and in no way formed an attorney-client... more
  3. Tai Christopher Bogan


    Contributor Level 18


    Lawyers agree

    Answered . An arrest is where the police take the person into custody. An arrest must be based upon probable cause, a strong suspicion of the person's guilt. A detention only requires reasonable suspicion - a lower standard, meaning based upon the facts of the case a reasonable officer would believe this person is likely the suspect. It is a fine line and a legal distinction. So if the DA doesn't file charges when someone is taken into custody the rap sheet should read that it was a "Detention" only vs. an official arrest.

    You could also move to seal the records by asking to court to find you factually innocent of the charges. This takes a bit of work and should be done through an attorney.

    Nevertheless, whatever question you are answering you should ask an attorney who specializes in that area. For example, if this is an immigration application, then ask an immigration attorney. If this is for a special license, then ask an administrative law attorney, etc.

    The above information does not establish an attorney client relationship nor is it meant to provide legal advice.

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