By Kurtis Ming

OLIVEHURST (CBS13) — A family man is on the hook to pay back $5,000 bail after being arrested twice on a warrant that belonged to a man who shares the same name.

Pulled over for a broken tail light in Williams, Gilberto Hernandez was booked in the Colusa County Jail.

“The guy grabbed me, and threw me in the back of the car,” Gilberto said.

He was arrested on an outstanding warrant for fleeing, before being sentenced for domestic violence.

“You got the wrong person. This is a mistake,” Gilberto said he told police.

This wasn’t the first time Gilberto had been mistakenly arrested.

Seven years earlier, he was wrongfully arrested in Southern California on the same exact warrant. It was tied to another Gilberto Hernandez; the two even shared the same birth date.

Gilberto of Olivehurst is a father of five, and said he has a clean record. During both arrests, Gilberto said the officers at the jails would not listen when he insisted he was innocent.

“[The officers] said I was the person they’re looking for,” Gilberto said.

But, during his second arrest, Gilberto said he was told he would have to sit in the Colusa County Jail for days, until he could be transferred to Santa Clara County, where the warrant was originally issued.     

Afraid he would lose his job as an appliance repairman, Gilberto felt he had no choice but to bail out.

“That should never happen,” said Bill Genego, a civil rights attorney who fights for innocent people that have been arrested.

“They should have been more responsive to his protests and taken the action necessary, before he had to post bail,” Genego said about Gilberto’s arrest in Colusa County.

Genego said it happens more than you think. According to the National Association of Criminal Defense Lawyers, mistaken identity arrests happen almost every day.

In 2010, we told you the story of Michael Taylor. He too faced rigorous questioning whenever he was pulled over. It was all because Michael shared the same name and birthdate as a crook with a warrant.

But, unlike Gilberto, Michael was never thrown in jail.

We brought the case to former Sacramento County Sheriff John McGinness.

He said officers have a duty to protect. If they think there’s a chance someone is dangerous and has felony warrants, the cops can’t just let them go.

“It’s not uncommon for people to lie to the police,” McGinness said.

“How do you make sure the warrant is for the same guy?” Kurtis Ming asked.

“The initial criteria would be name and birthdate,” McGinness said.

In patrol cars, officers often have access to DMV photos and information including height, weight, eye and hair color.

“Throughout my entire career, if you have a person whose first, middle and last [name] matched – and date of birth matched, there was never a question that was the person for whom the warrant was issued.” McGinness said.

“So, if I share the same name and same birthdate as a crook, there’s a chance I could end up in jail if I get pulled over?” Kurtis asked McGinness.

“Yeah, you could suffer some consequences for that,” McGinness said.

But, he thinks the mistaken identity should be cleared up pretty quickly, once you are fingerprinted at the jail.

“How long does that normally take?” Kurtis asked.

“An hour at the max, not very long,” said McGinness.

But, Gilberto said he sat in the Colusa County Jail for six hours before bailing out.

Eve after being fingerprinted, he says they wouldn’t let him go.

We wanted to know why, but a spokesperson for the Colusa County Sheriff’s Department said they can’t answer that question or talk about the case because a Santa Clara County judge has since sealed Gilberto’s arrest record.

But, Gilberto was still on the hook to pay back the $5,000 he owed to the bail bonds company.

“If we don’t pay, they go after us.” Gilberto said.

So, what will prevent the innocent Gilberto Hernandez from being arrested again?

Santa Clara County issued him a letter that he can carry with him stating the felony warrant does not belong to him.

“Is it reasonable to expect this guy to carry around a letter for the rest of his life?” Kurtis asked McGinness.

“Reasonable, I don’t know. He certainly has motivation to do so. I certainly would.” McGinness said.

But, perhaps he won’t need that letter. After learning Gilberto had been wrongfully arrested twice, a Santa Clara County judge threw out the case, meaning the other Gilberto Hernandez, who already pled no contest to domestic violence, may never serve his sentence.

“I find that as troubling as anything I’ve heard in this story,” McGinness said.

Hoping his days of wrongfully being sent to jail are behind him, Gilberto can’t help but tense up every time he sees a patrol car.

“I worry that they [will] pull me over and I [will] go through all this again,” Gilberto said.

Santa Clara County confirmed there were other people named Gilberto Hernandez that have also faced scrutiny over this warrant.

After we reached out to the bail bonds company, they agreed to waive the $1800 Gilberto had left to pay.

But that means an innocent man paid $3200 for a crime he didn’t commit.

While the court recommended the bond company return all the money to Gilberto, the bond company does not have to comply.