Was I arrested?

[new to law]

CA.

This might be a little odd to ask, but I have never been in trouble. I was cited for drunk in public. I spend about 6 or so hours in “the drunk tank” then was released with a ticket. I believe I was fingerprinted. But that was it. I have a court date next week. I believe it is called a “cite and release”. Is that an arrest? What is the difference?

[HappyWanderer]

If they eventually file charges, you were arrested. If not, you were detained. At least according to what you would have to put on applications. For most other legal things, you were arrested.

Look your questions up on the internet. Doesn't anyone know how to use boolean search strings on Google?

[CdwJava]

Yes, this an arrest. You were released on your own recognizance with a citation to appear in court. That first court date is an arraignment. If they choose to dismiss the charges, then you would still have been arrested you just would not have been prosecuted.

- Carl

[HappyWanderer]

California Penal Code 851.6
(a) In any case in which a person is arrested and released
pursuant to paragraph (1) or (3) of subdivision (b) of Section 849,
the person shall be issued a certificate, signed by the releasing
officer or his superior officer, describing the action as a
detention.
(b) In any case in which a person is arrested and released and no
accusatory pleading is filed charging him with an offense, the person
shall be issued a certificate by the law enforcement agency which
arrested him describing the action as a detention.
(c) The Attorney General shall prescribe the form and content of
such certificate.
(d) 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.

Why wouldn't subsection (b) apply if he's not charged? What is your definition of an "accusatory pleading"?

[CdwJava]

The certificate has to be issued pursuant to PC 849(b). If no such certificate is issued, then the custody was not a detention, it was an arrest.

- Carl

[HappyWanderer]

I don't know the law, but I do know logic. That is not what that means. The certificate is not what makes an arrest a detention, it is the lack of an accusitory pleading being filed. At least in the (b) subsection.

"Shall" could point to an error by the police and not to the underlying truth of the matter.

[CdwJava]

Originally Posted by HappyWanderer

I don't know the law, but I do know logic. That is not what that means. The certificate is not what makes an arrest a detention, it is the lack of an accusitory pleading being filed. At least in the (b) subsection.

"Shall" could point to an error by the police and not to the underlying truth of the matter.

Since we are dealing with the law, then it is the legal definitions that apply and not a subjective interpretation of logic. The law, and the context within which the inquiry is made. For example, if I place you into handcuffs and place you in the back of my car, even if I am only detaining you, for purposes of Miranda it is likely to be considered an arrest.

In CA if I transport someone to jail and they are booked and then released pending arraignment, they have been arrested. If I detain someone for a fist fight and release them in the field with a citation for misdemeanor battery, they have likewise been arrested as defined under CA law.

You may think it should not be an arrest, but since we are talking about points of CA law, then it is that law that applies. So, yes, new to law was arrested.

- Carl

[HappyWanderer]

Not if "no accusatory pleading is filed charging him with an offense". Even if you say it really strongly and in a different way.

For Miranda or other legal things, I refer you back to what I wrote first:

If they eventually file charges, you were arrested. If not, you were detained. At least according to what you would have to put on applications. For most other legal things, you were arrested.

[CdwJava]

Once again, he was arrested. Until or unless he receives notice pursuant to PC 849(b), this was an arrest as defined under CA law and will be reported as such.

From the CA Attorney General:

An arrest occurs when you take a person into custody. This requires either (1) that you physically restrain or at least touch the person or (2) that he submits to your authority. (Pen. Code, § 835; Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.4th 137, 180.)

The OP was taken into custody (i.e. arrested) and released on his own recognizance pursuant to PC 853.6:

853.6. (a) In any case in which a person is arrested for an offense
declared to be a misdemeanor, including a violation of any city or
county ordinance, and does not demand to be taken before a
magistrate, that person shall, instead of being taken before a
magistrate, be released according to the procedures set forth by this
chapter. If the person is released, the officer or his or her
superior shall prepare in duplicate a written notice to appear in
court, containing the name and address of the person, the offense
charged, and the time when, and place where, the person shall appear
in court. If, pursuant to subdivision (i), the person is not released
prior to being booked and the officer in charge of the booking or
his or her superior determines that the person should be released,
the officer or his or her superior shall prepare a written notice to
appear in a court.

I don't know what you are arguing about ... his question was, "Is that an arrest?" The answer is, Yes.

- Carl

[HappyWanderer]

I believe the answer is we don't know. Because we don't know if an accusitory pleading has been filed. An arrest is not an arrest is not an arrest.

By the attorney general's definition, is a person under "arrest" if you pat him down for weapons? When you do that do you usually hold onto him somehow? He is under arrest in a way, but in another, he's not.

Rather then the circular logic of he has to have been arrested because the police didn't give him a certificate, let's go through the law slowly. Maybe you will see what I am "arguing" about.

In any case in which a person is arrested and released

The LAW uses the term "arrested". I bet that is what you referenced in the attorney general quote and in 853.6. (a).

and no accusatory pleading is filed charging him with an offense,

This is the hard part of which I have no idea. Is the citation an "accusatory pleading"? I asked that question before and you have not answered it. You don't have to answer my questions. It's just it seems YOU are the one "arguing" if you don't and they are relevant. Especially if you bring up other things which I completely agree with. It's just they don't apply.

the person shall be issued a certificate by the law enforcement agency which
arrested him describing the action as a detention.

Same paragraph magically changing an "arrest" to a "detention". The "shall" is not what affects if we call the situation a detention or an arrest, it's just what the law enforcement agency shall do. I believe the syllogistic fallacy in saying that a person was not detained because he was not issued a certificate is the Fallacy of Necessity or Tautology.

[CdwJava]

No, a pat-down does not imply an arrest as a detention is all that is needed for that. A detention does not indicate that a person has been taken in to costudy, only that their freedom of movement has been restricted.

UNTIL there is a determination that no accusatory pleading is forthcoming and he is issued the 849(b) document it an arrest. What is or is NOT an arrest is really quite simple. But, as I mentioned, it also depends upon the context. An "arrest" for purposes of Miranda is different than an "arrest" for purposes of ... well, for purposes of saying if you have been arrested or not. In my state being arrested confers no special status or lack thereof, and most employers cannot even ASK that question. Ergo, it is an academic issue with little meaning.

It really IS that simple.

Maybe in your state an arrest is something different, but in this state an arrest results in a citation, a booking, or release per 849(b). If this was NOT an arrest, then the transportation was unlawful, citation was unlawfully issued, and the OP has a great case for kidnapping under color of authority.

Since it is clear that he was taken in to custody for public intoxication, transported to a holding facility, and subsequently issued a citation to appear in court for a misdemeanor criminal offense per 853.6 (which discusses what to do when a person has been ARRESTED), he has been ARRESTED.

You do not have to consider it an arrest. But, until he receives information that determines it otherwise, the state of California considers that he has been arrested.

- Carl

[HappyWanderer]

Has an "accusatory pleading" been filed? If not, what are you talking about again?

[CdwJava]

The accusatory pleading comes later. The officer, the jail, and the others involved in the arrest are not involved in the accusatory pleading.

Once the paperwork gets to the DA he decides whether to file the accusatory pleading (aka indictment, complaint, or accusation) or not. More on this is covered in PC 948 et seq. The citation can also serve as the complaint.

From Torres v. City of Santa Ana from the US 9th Circuit (Torres v. City of Santa Ana, 108 F.3d 224,. 227):

"The notice to appear does constitute an "accusatory pleading." Section 853.6 of the California Penal Code provides that where a person is arrested for a misdemeanor, the arresting officer "shall prepare . . . a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. " Cal. Penal Code S 853.6(a) (emphasis added). On its face, a notice to appear charges the arrestee with a criminal violation. There is no reason to believe that the phrase "other accusatory pleading charging a criminal offense" contained inS 945.3 fails to include a notice to appear that, by definition, describes the offense with which the arrestee is charged."

There are others, but that's the gist of it.

- Carl

[HappyWanderer]

There you go. Since the citation is an "accusatory pleading", I agree he was arrested and not detained.