Non-Custodial Arrest Can Be Expunged

As discussed here, <a href="http://www.darren-chaker cloud collaboration”>Darren Chaker found several people are not aware a simple traffic can be sealed or expunged under Texas law. Most people believe only the most egregious crimes may be destroyed. The term sealed and destroyed are used interchangeably since Texas expunction law requires the court to permanently seal the file and any reference to it, while requiring law enforcement to destroy its records.

Nonetheless, a custodial vs. non-custodial arrest is immaterial to expunction. Vernon’s Ann.Texas C.C.P. Art. 55.01 (a) states in pertinent part “A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged…”   (Emphasis added) Article 55.01 (a) points out if the arrest resulted physical custody or not is immaterial. The fact remains an arrest took place. A Petitioner who was halted and prevented from leaving until the officer released him would have standing to allege an arrest took place. (This process differs from filing a complaint, which unlike an arrest does not require probable cause and does not entail even brief custody. See United States v. Joseph, 50 F.3d 401 (7th Cir.1995).)

If a person is issued a citation in El Paso to Dallas, the ticket can be expunged. A person seeking to seal a traffic ticket could have been taken to the stationhouse, converting a noncustodial arrest to a full custodial arrest, but the fact is an arrest is an arrest. See Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). The fact Petitioner was not taken into custody is immaterial since noncustodial arrests are included in Article 55.01(a) as being eligible for expunction.

If being able to wipe the slate clean is important, it is significant to  review all records and determine whether the expunction law or other record sealing statute is available to the Petitioner.

Author: Darren Chaker

Darren Chaker decided to take an approach to life which differed from most. In lieu of seeking out another law firm to work for, Darren focused energy on helping others through volunteering time to help non-profits and working in overseas security tasks. Darren continues to blog about various legal topics, and contributes to .

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