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Ask Colleen Grady Your Own Question
Colleen Grady
Colleen Grady, Attorney and Counselor at Law
Category: Criminal Law
Satisfied Customers: 485
Experience:  Attorney and Counselor at Law
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My son was recently arrested Intoxication under

Customer Question

My son was recently arrested for Public Intoxication under 647(f) and released pursuant to 849(b)(2). The release record says that no further proceedings are desirable. The release document also indicates that a copy of the release record was sent to the court clerk(2 copies), my son and the custody record. No copies were sent to the city prosecutor's office or other law enforcement agency. Given the forgoing information, please advise whether my son will later be formally charged with this offense, and if not can he move to get this arrest expunged as he has never been arrested previously, and he has a clean record. He is 28 year old working professional who does not want this to appear on his record. If so what steps does he need to take to expunge this arrest? Thanks in advance for your advice
Submitted: 7 months ago.
Category: Criminal Law
Expert:  Colleen Grady replied 7 months ago.
Hello. I will help you with your questions. I have been an attorney for 26 years and I was a prosecutor for 9 years. Please give me a few minutes to draft a complete response for you.
Expert:  Colleen Grady replied 7 months ago.
If your son was released pursuant to 849(b)(2), he will not be charged in the future. Release under this law means he was only detained and was not formally arrested. Section 849 states the following: (a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.(b) Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:(2) The person arrested was arrested for intoxication only, and no further proceedings are desirable.(3) The person was arrested only for being under the influence of a controlled substance or drug and such person is delivered to a facility or hospital for treatment and no further proceedings are desirable.(c) Any record of arrest of a person released pursuant to paragraphs (1) and (3) of subdivision (b) shall include a record of release.  Thereafter, such arrest shall not be deemed an arrest, but a detention only.Although no record public record should be created, you should check to make sure. Go to this California Attorney General site to request a copy of his record: http://oag.ca.gov/fingerprints/securityExpungement petitions are used when someone has been convicted, arrested and the case was dismissed. There should be no need for this in your son's situation. You should, however, petition the police agency to destroy and seal his detention record. Call this agency and ask what forms you need to use to do this. If the police deny this petition, then go to the court to petition or a sealing of the police detention and release record.Please let me know if you have more questions. I will be happy to help more. If you are satisfied with my help, please rate my service.