Yes, and it happens more often than most people realize. An arrest is not a charge. Between the moment a person is arrested or investigated and the moment the Alameda County District Attorney’s Office decides what to file, there is a window in which a defense attorney can present evidence, context, and argument to the prosecutor who makes that decision. Cases are declined, reduced, or diverted at that stage every week in Oakland.
The window is short, most people do not know it exists, and by the time they hire a lawyer it has usually closed. This guide explains how the charging process works in Alameda County, what a defense attorney can actually do before charges are filed, which cases are the best candidates for pre-filing intervention, and what happens to the arrest record when charges are never filed.
How The Charging Decision Works In The Alameda County District Attorney’s Office
After an arrest, the police department completes its report and forwards it to the District Attorney’s Office. A charging deputy reviews the report, the witness statements, any video or physical evidence, and the arrested person’s record, and decides whether there is sufficient evidence to file, what charges to file, and whether to file them as felonies or misdemeanors. The deputy can also send the case back to the police for further investigation or decline it entirely.
For a person in custody, that decision is made within a day or two so that charges can be presented at arraignment. For a person who was cited and released, or who was never arrested but is under investigation, the decision can take weeks or months. The statute of limitations gives the office one year to file most misdemeanors and three years to file most felonies, and a case that is declined can in theory be refiled within that period if new evidence emerges. In practice, a declined case rarely comes back.
What A Defense Attorney Can Do Before The District Attorney Files
The most effective tool is a pre-filing submission to the charging deputy. The attorney contacts the office, identifies the case, and provides what the police report does not contain. That may include the accused’s account through counsel, witness statements the police never took, surveillance video the police never collected, medical records, text message threads that show context, and documentation of the accused’s background, employment, and lack of record. The goal is to give the deputy a reason to decline, to file a lesser charge, or to file a misdemeanor rather than a felony.
The attorney can also contact the investigating detective directly, become the point of contact so that the client is never interviewed, and arrange a self-surrender if an arrest is coming so that the client is not taken from work or home in handcuffs. In misdemeanor cases involving a private party, a civil compromise under Penal Code 1377 can resolve the matter before filing when the injured party is made whole. Anyone facing a first time arrest is a strong candidate for this kind of intervention, and family members who want to help should read the firm’s guide for when someone you know needs a lawyer.
Which Cases Are The Best Candidates For Pre-Filing Intervention
Cases built on a single accuser’s statement, with no physical evidence and no independent witnesses, are the most likely to be declined when the defense presents a credible alternative account. Sex offense accusations, domestic violence arrests arising from an argument, and assault cases where the accused was defending themselves fall into this category. Cases where the police report omits critical context, such as the events that led up to a confrontation or messages between the parties, are similarly strong candidates.
Cases where the accused has no record, stable employment, and a legitimate explanation are more likely to be filed as misdemeanors rather than felonies, or to be routed into a diversion program. Cases involving mental health, substance use, or military service can be positioned for military diversion, mental health diversion, or drug diversion before the first court date, which results in a dismissal once the program is completed. The firm’s sex crimes defense and domestic violence defense practices in particular see cases resolved at this stage regularly.
What Pre-Filing Intervention Cannot Do And When To Expect Charges Anyway
A defense attorney cannot prevent the District Attorney from filing a case the office believes it can prove. Cases with clear video, multiple independent witnesses, a confession, serious injury, or a weapon are usually filed regardless of what the defense submits, and in those cases the pre-filing work shifts toward influencing what gets filed rather than whether it does. Reducing a felony to a misdemeanor, keeping a strike allegation or an enhancement out of the complaint, and arranging release conditions in advance are all valuable outcomes even when a filing is certain.
Pre-filing intervention also cannot make an accuser withdraw a complaint, and no ethical attorney will attempt to contact a witness for that purpose. What the attorney can do is present the accuser’s own prior statements, messages, and conduct to the deputy so that the office evaluates the credibility of the accusation before committing to it. Founder Givelle Lamano and her team handle these submissions personally, and the firm’s case results include matters that were never filed at all.
What Happens To The Arrest Record When Charges Are Never Filed
An arrest that never results in charges still creates a record, and that record shows up on some background checks. California law provides two remedies. Under Penal Code 851.91, a person who was arrested but never charged, or whose charges were dismissed, is generally entitled to have the arrest record sealed as a matter of right once the statute of limitations has run or the case has been resolved. Under Penal Code 851.8, a person who can show factual innocence can petition to have the arrest records destroyed, which is a higher standard but a more complete remedy.
Both petitions are part of the follow-through in a pre-filing case, and the attorney who handled the intervention is best positioned to file them. The firm’s Oakland record clearing attorneys handle sealing and factual innocence petitions alongside expungements for clients throughout Alameda County.
Why Timing Decides Whether Charges Can Be Stopped
The pre-filing window opens at the moment of arrest or the first contact from a detective and closes when the charging deputy signs the complaint. For someone in custody that can be 48 hours. For someone cited and released or under investigation it may be weeks, but no one is notified when the deputy picks up the file. The only way to use the window is to have counsel already in place, which is why the firm answers calls around the clock and meets with clients and families immediately at the downtown Oakland office near the courthouses, the Alameda office at Marina Village, the Walnut Creek office for Contra Costa County cases, and the San Jose office for Santa Clara County cases.
Call An Oakland Criminal Defense Attorney Before The District Attorney Decides
If you or a family member has been arrested, cited, or contacted by a detective and no charges have been filed yet, the most valuable thing you can do is act before the filing decision is made. The firm answers calls 24 hours a day at (510) 842-0750, and a 30 minute consultation will tell you whether your case is a candidate for pre-filing intervention and what needs to happen today. Contact Lamano Law Office now.
