Some people who are taken into custody after a DUI encounter and then released receive a document from the arresting agency that says their arrest should be treated as a detention only. This piece of paper, called a Detention Certificate, creates real confusion about what it means legally, whether criminal charges can still be filed, and what steps to take to protect your record. This article answers those questions plainly.
The Difference Between a Detention and an Arrest
In California law, a detention and an arrest are legally distinct events with meaningfully different consequences.
A detention is a temporary stop by law enforcement based on reasonable suspicion that something may be wrong. It is not a formal taking into custody. You are not considered to have been arrested, and in most contexts you are not required to disclose a detention when asked whether you have been arrested.
An arrest is a formal taking into custody based on probable cause that you committed a crime. An arrest creates a record that appears on your criminal history, commonly called a RAP sheet, maintained by the California Department of Justice. That record can appear on background checks, affect employment opportunities, and carry a stigma of implied guilt even when no charges are ever filed.
The legal framework governing the boundary between these two events in the no-charges-filed context is found in California Penal Code §§ 849, 849.5, and 851.6.
What the Detention Certificate Is
Under Penal Code § 849(b)(1), when a person is arrested and taken into custody but then released because the officer is satisfied there are no grounds to file a criminal complaint, the arrest is deemed a detention rather than a formal arrest. Under Penal Code § 851.6, the arresting agency is required to issue the person a certificate confirming that the incident was a detention only and not an arrest.
That document is the Detention Certificate. It is the law enforcement agency’s official acknowledgment that you were taken into custody but that the matter did not rise to the level of a formal arrest requiring criminal prosecution. Importantly, under Penal Code § 849.5, when charges are not filed, the arrest itself must be updated in DOJ records to reflect detention only, and the arrest is to be deleted from the arresting agency’s records.
In plain terms, if everything works as it should, a Detention Certificate means the incident should not show up on your criminal history as an arrest. You can honestly answer no when asked whether you have been arrested, at least with respect to that incident.
Does Receiving a Detention Certificate Mean Charges Cannot Be Filed?
This is the question most people ask first, and the answer is nuanced: receiving a Detention Certificate does not automatically mean charges cannot come.
The Detention Certificate is issued at the point of release, which may be before the DA has made any filing decision. If the arresting agency releases you and treats the incident as a detention, that is their determination based on what they saw at that moment. The DA independently reviews the case and makes their own filing decision. In some situations, particularly those involving blood draws where results are not yet available, the DA may still receive the case report and choose to file charges within the statute of limitations even after a Detention Certificate has been issued.
That said, the issuance of a Detention Certificate is a meaningful signal. It reflects the arresting agency’s own conclusion that the grounds for a formal arrest were not firmly established. In practice, cases where a Detention Certificate is issued are less likely to result in charges than standard DUI arrests, but they are not immune from prosecution.
The critical variable is timing and evidence. If you submitted to a blood draw and the results have not yet come back, the Detention Certificate may have been issued before the agency had the full picture. Once blood results return showing a BAC at or above the legal limit, the DA still has the ability to file charges within the applicable statute of limitations, which is one year from the date of the incident for a misdemeanor DUI.
Why Law Enforcement Does Not Always Follow the Law on This
The Schmidt v. CHP case decided by California’s Second Appellate District in 2016 exposed a systemic failure. John Schmidt was arrested by the CHP for DUI in Santa Barbara County. The DA declined to file charges. The CHP did not issue Schmidt a Detention Certificate as required by Penal Code § 851.6, and did not update his DOJ record to reflect detention only rather than arrest. Schmidt discovered the problem when he looked at his own criminal history and saw an arrest on his record for an incident that never resulted in any charge.
Schmidt filed a class action lawsuit against the CHP. The court ruled that the CHP was required to issue the certificate and update DOJ records, and awarded attorney fees. The ruling confirmed that law enforcement agencies are legally obligated to follow Penal Code §§ 849.5 and 851.6, but the case itself demonstrated that many agencies routinely fail to do so without being prompted.
This means that even if you received a Detention Certificate, it is worth verifying that your DOJ record actually reflects detention only rather than arrest. And if you were released without receiving any Detention Certificate in a situation where charges were not filed, you may be entitled to one that was never issued.
How to Check Your DOJ Record and Fix It If Needed
The most direct way to check your California criminal history is to request a copy of your own record through the DOJ’s APPS system, which stands for Applicant Processing Services, or through a Live Scan fingerprint submission. The DOJ charges a fee for a personal record review.
If your record shows an arrest for an incident where you received a Detention Certificate or where charges were never filed, you have options.
Contact the arresting agency directly. Call the law enforcement agency that arrested you and ask them to update your DOJ record to reflect detention only under Penal Code § 849.5. Bring or cite your Detention Certificate. Some agencies will do this promptly. Others will need to be pushed.
Request a Detention Certificate if you never received one. If no charges were filed but you were never given a certificate, contact the arresting agency and request one under Penal Code § 851.6. Having that document in hand strengthens your ability to have the record corrected.
Petition to seal the arrest record. If the arrest occurred on or after January 1, 2018, and charges were not filed or were dismissed, you may be eligible to petition to seal the arrest record under Penal Code § 851.91. A sealed arrest record is deemed not to have occurred under California law, which is a stronger form of relief than a Detention Certificate. Sealing requires a court petition, and your attorney can file it on your behalf.
Petition for factual innocence. In cases where you can demonstrate that the arrest was factually unjustified, a petition for factual innocence under Penal Code § 851.8 is the strongest remedy available. If granted, it requires the destruction of the arrest record entirely rather than simply noting it as a detention. This is a higher standard to meet but produces the best outcome for your record.
What to Do With the DMV Side of the Case
Receiving a Detention Certificate does not affect the DMV’s Administrative Per Se process. The DMV suspension is triggered by the arrest itself, and the Detention Certificate issued at the criminal law level does not undo it. If you did not request a DMV hearing within 10 days of the incident, your driving privilege may have already been suspended administratively regardless of the criminal case’s outcome.
If the criminal charges are ultimately not filed or are dismissed and you believe the DMV suspension was wrongly imposed, your attorney can explore whether grounds exist to challenge the APS suspension separately through the DMV process.
The Practical Bottom Line
A Detention Certificate is a meaningful document that can protect your record if charges are never filed and if law enforcement properly updates the DOJ’s records as required. But it is not a guarantee that charges will not come, particularly if blood results are still pending. And it does not protect you on the DMV side of your case.
If you received a Detention Certificate after a DUI-related encounter, the smart steps are to monitor whether charges are filed during the statute of limitations window, verify that your DOJ record reflects detention only rather than arrest, and address any DMV action separately. If the record does not accurately reflect what happened, you have legal tools available to correct it.
Citations
- California Penal Code § 849(b)(1) (release from custody and deemed detention).
- California Penal Code § 849.5 (arrest deemed detention when charges not filed, DOJ record update required).
- California Penal Code § 851.6 (certificate of detention required from arresting agency).
- California Penal Code § 851.91 (petition to seal arrest record).
- California Penal Code § 851.8 (petition for factual innocence).
- California Penal Code § 802(a) (one-year statute of limitations for misdemeanors).
- Schmidt v. California Highway Patrol, 2 Cal.App.5th 1287 (2016).