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California Penal Code Section 849.5

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. 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 relationship. Contact Info: Sedrak Yenikomshuyan, Esq. 4730 Woodman Avenue, Suite 405 Sherman Oaks, California 91423 (818) 804-1712 tel (818) 475-1505 fax www.shermanoakslawyer.net


  2. 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.


  3. 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 legal advice, are not guaranteed to be correct, complete, or up-to-date. This response is not intended to create, and access to or receipt of information included in this response does not constitute, a lawyer-client relationship. No one should act upon this information without seeking professional counsel. Although we would be pleased to communicate with you by e-mail or otherwise, do not send us information until you speak with one of our lawyers and get authorization to send that information to us. Please be aware that if you communicate with us by e-mail or otherwise in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential.

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