It should not stay recorded as an arrest. When a person is arrested and released and no accusatory pleading, such as a criminal complaint, is filed, Penal Code section 851.6 requires the arresting agency to give the person a certificate describing the event as a detention, and requires the arrest records of that agency and of the state Department of Justice to call it a detention. The event is still recorded, but as a detention rather than an arrest.

The release: Penal Code section 849(b)(2)

Penal Code section 849(b)(2) lets a peace officer release a person arrested without a warrant, instead of taking them before a magistrate, when “the person arrested was arrested for intoxication only, and no further proceedings are desirable.” This is the provision that allows a release, with no court appearance, after an arrest only for public intoxication under Penal Code section 647(f).

What “detention only” in section 849 covers

Subdivision (c) of section 849 says that after certain releases, “the arrest shall not be deemed an arrest, but a detention only.” It applies to a release “pursuant to paragraph (1), (3), (5), or (6) of subdivision (b).” Those paragraphs cover:

  • the officer’s conclusion that there are insufficient grounds for a criminal complaint;
  • an arrest only for being under the influence of a controlled substance or drug, followed by delivery to a treatment facility or hospital;
  • delivery to a hospital or urgent care facility for mental health evaluation and treatment; and
  • delivery or referral to a public health or social service organization that agrees to accept the person.

Subdivision (c) does not list paragraph (2), the intoxication-only release.

The rule that covers an intoxication release

Penal Code section 851.6 fills that gap with a general rule that does not depend on which paragraph of section 849(b) was used. Under section 851.6(b), when a person is arrested and released and no accusatory pleading is filed charging an offense, “the person shall be issued a certificate by the law enforcement agency which arrested him or her describing the action as a detention.” A release under section 849(b)(2) is made because no further proceedings are desirable. If no charge is filed afterward, section 851.6(b) applies, even though section 849(c) and section 851.6(a) leave paragraph (2) off their narrower lists.

What happens to the record

Section 851.6(d) carries the correction into the records themselves: “any reference to the action as an arrest shall be deleted” from the arrest records of the arresting agency and of the Department of Justice. After that, “any record of the action shall refer to it as a detention.” The event does not disappear; it is recorded as a detention instead of an arrest.

The duty to issue the certificate belongs to the agency. Practically, if you never received one, you can ask the arresting agency for it and keep a copy with your records.

Not the same as civil protective custody

Civil protective custody is a different track. Under Penal Code section 647(g), when a person has violated the public intoxication law, an officer who is reasonably able to do so must place the person in civil protective custody at a facility designated under Welfare and Institutions Code section 5170 for 72-hour treatment and evaluation of inebriates. A person placed in civil protective custody “shall not thereafter be subject to criminal prosecution” based on the facts that led to the placement.

That rule does not apply to a person under the influence of a drug, or of alcohol combined with a drug; a person the officer has probable cause to believe committed a felony, or who committed another misdemeanor along with public intoxication; or a person the officer believes in good faith will try to escape or will be unreasonably difficult for medical personnel to control. If you were placed in civil protective custody rather than arrested and released, the protection that matters is section 647(g)’s bar on later prosecution based on the same facts.

If a charge was filed, or you want the record sealed

If a charge was filed after your release, section 851.6(b) does not apply, and the charge itself needs attention. Sealing an arrest record is a separate court process with its own eligibility rules; for example, Penal Code section 851.91 lets a person whose arrest did not result in a conviction petition to have the arrest records sealed.

Talk to a lawyer about what your record shows

If you were arrested for public intoxication and released once sober, and you are not sure your record was corrected, the Law Offices of David S. Chesley can help you find out what it shows and what to do next. Call (800) 755-5174.