Class-action suit against CHP moves forward : Agency accused of shirking law when DUI cases fall apart
December 3, 2013 6:27 AM
With all the headaches it can bring, nobody wants an arrest record.
But about 200 people booked by the California Highway Patrol in Santa Barbara County live under the stigma of a DUI arrest even though they were never brought up on charges.
It’s all because the CHP apparently refuses to update records of people taken into custody on suspicion of driving under the influence, yet not charged, from having been arrested to simply having been detained.
This apparently flies in the face of state law.
Now a Superior Court judge has paved the way for a class-action lawsuit filed by Santa Barbara DUI defense attorney William Makler on behalf of 187 people who say the CHP needs to be forced to update records accordingly.
Section 849.5 of the California Penal Code states that when a person is arrested and released without charges being filed, the record of arrest shall include a record of release.
“Thereafter,” the code continues, “the arrest shall not be deemed an arrest, but a detention only.”
According to a motion for class certification filed by Mr. Makler, the CHP ignores the law, resulting in it and the state Department of Justice maintaining arrest records on motorists booked on suspicion of driving under the influence in Santa Barbara County even though no charges are filed.
Santa Barbara County Superior Court Judge Thomas Anderle today is set to make permanent a tentative ruling naming Mr. Makler lead counsel for the class, all of whom have an arrest on their record even though California law recognizes them as having only been detained.
“If we go by just common sense understanding, an arrest is more pejorative, it’s more damaging to an individual’s reputation than a detention,” Mr. Makler told the News-Press on Monday in explaining what’s at stake for the individuals.
Many people who operate motor vehicles – grandmothers included – are stopped for a moving violation at some point in their life, and they face a minute moral stigma attached to being detained.
“They are minor transgressions and mostly people forgive people for them,” Mr. Makler said.
But in an arrest, “where a police officer believes you are someone who needs to be shackled and restrained like an animal, it’s suggested you committed a moral wrong, a crime.”
Of course, not everyone arrested is found to have a committed a crime or even charged with a crime.
The state Supreme Court recognizes that an erroneous or inaccurate arrest record can be the basis for denying someone business or professional licensing, employment or similar opportunities for personal advancement.
The class-action suit filed by Mr. Makler stems from the May 2011 arrest of John J. Schmidt. After being booked by the CHP at County Jail on suspicion of DUI, a misdemeanor, Mr. Schmidt was released with a notice to appear in court.
In June of that year, the Santa Barbara County District Attorney’s Office decided against filing any charges “after concluding that his low blood alcohol reading and the lack of a bad driving pattern prior to his arrest made a conviction unlikely,” according to court records.
Had the CHP followed the law, it would have updated Mr. Schmidt’s record to reflect that he had been detained instead of arrested.
But the CHP didn’t follow the law.
Nor did it issue a certificate of detention, as required by another section of the Penal Code stating that, “Any reference to the action as an arrest shall be deleted from the arrest records of the arresting agency and of the Bureau of Criminal Identification and Investigation of the Department of Justice. Thereafter, any such record of the action shall refer to it as a detention.”
Mr. Schmidt went to court in May of last year hoping to convince a judge to order the CHP to follow the law.
The motion filed on his behalf defined the class as “any and all individuals who were arrested by (the CHP) between June 1, 2009, to present; who were released from custody; who did not have an accusatory pleading related to the arrest filed against them in the Santa Barbara County Superior Court; who did not receive a certificate of detention from the arresting law enforcement agency; and who did not receive a disposition noting the arrest was a detention only on their criminal record maintained by the California Department of Justice.”
Mr. Schmidt and the others claim they have been denied the benefits conferred by the Penal Code “because the CHP has a policy and practice of not complying with the statutes” to send out certificates of detention and reclassify criminal records.
The CHP opposed the Makler motion, arguing that it’s impossible to determine who qualifies for the proposed class. In addition, it says the terms “arrest,” “custody,” “certificate of detention” and “receive” are ambiguous.
In his tentative ruling, which is likely to become final at a hearing at 9:30 a.m. today, Judge Anderle writes, “The plain, common sense meaning of ‘receive’ is to be given or issued something … The term ‘certificate of detention’ refers to the statutory provision in Penal Code Section 851.6(b) requiring the issuance of ‘a certificate … describing the action as a detention.'”
Anyone reviewing the class definition should be able to determine whether they qualify, the judge continues.
But, for clarity’s sake, he writes that it shall include individuals “who were arrested by the CHP in Santa Barbara County and taken into custody and booked between June 1, 2009, and the present.”
Counsel for the CHP also failed to sway Judge Anderle with other arguments, including that there’s no well-defined community of interest to justify a class action and no evidence regarding how many individuals potentially fall within the class definition and whether there are any means available for identifying the class members.
“The court is not persuaded by these arguments,” writes the judge. “Schmidt was not arrested and released because the CHP had determined that there were insufficient grounds for the arrest. Schmidt was also not arrested for intoxication only (he was arrested for DUI) and no further proceedings were deemed desirable, nor was he arrested for being under the influence and taken to a facility or hospital for treatment.”
Mr. Schmidt, Judge Anderle continues, “met his burden of establishing that his circumstances are typical of the class claims as he has alleged that he was arrested by respondent, that he was released from custody, that the Santa Barbara District Attorney declined to file a complaint against him, that he did not receive a certificate of detention from respondent and that his arrest records were not changed to reflect that the action was ‘a detention only.'”
As for the class size, it was the CHP, according to the judge’s tentative ruling , that identified through it its own evidentiary responses that 187 people “were arrested during the three-year period … who did not have an accusatory pleading filed against them by the district attorney. Although the CHP did not state how many of these individuals were released from custody, it is reasonable to conclude that most, if not all, of the individuals who did not have a complaint filed against them were released.”
“The CHP, of course, is in the best position to know this, and to know the number of individuals who did not have their arrests deleted from the CHP files,” says the judge.
Finally, because the facts of each case are essentially the same, Judge Anderle writes, “requiring nearly two hundred individuals to file separate actions … would be unduly burdensome for the individuals and the courts, with cumulative pleadings, discovery and trials.”
This could also mean inconsistent rulings and judgments.
Granting the class certification doesn’t mean Judge Anderle took a position on the merits of the case. At this stage, he’s not required to examine the merits, but rather only whether the petitioner carried the burden of establishing what’s needed for a class action.
Mr. Schmidt has done just that.
While Mr. Makler said the remedy he is seeking for the class doesn’t go as far as, say, sealing each person’s record, it does accomplish two important things: “It tells you that you were not arrested. If you want to live the rest of your life saying, ‘I was never arrested,’ you can do that under California law. It also causes change in the way law enforcement records and reports the events. They have to report to you that you were not arrested but detained.”
Any monetary damage suffered by class members has yet to be determined.
“Right now this is more about forcing compliance,” said Mr. Makler.
“The CHP, over a three-year period, we feel, deprived 187 people of their statutory entitlements.”
Asked whether there’s a shining star among local law enforcement when it comes to doing what’s required of them, Mr. Makler said one agency stands out.
“The Santa Barbara PD is most adherent to this law.”