California Penal Code § 849(b) PC permits police to release arrestees from custody without first being arraigned if there are insufficient grounds to make a criminal complaint or if the arrestee’s sole offense is public intoxication. Police can also release arrestees whose sole offense is being high on drugs as long as they deliver them to a hospital or facility for treatment.
The full text of the statute reads as follows:
849(b). A peace officer may release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:
(1) The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.
(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 the person is delivered to a facility or hospital for treatment and no further proceedings are desirable.
(4) The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate.
(5) The person was arrested and subsequently delivered to a hospital or other urgent care facility, including, but not limited to, a facility for the treatment of co-occurring substance use disorders, for mental health evaluation and treatment, and no further proceedings are desirable.
California law requires suspects who are arrested without a warrant to be brought before a magistrate judge. But under California Penal Code 849(b) PC, there are five cases where police may release these arrestees from custody without seeing a magistrate first:
- The police believe there is not enough evidence to go forward with a criminal complaint.
- The suspect’s only offense was public intoxication.
- The suspect’s only offense was being under the influence of drugs, and he/she was delivered to a treatment facility.
- The suspect was arrested and taken to a facility for mental health evaluation and substance abuse disorders.
- The suspect was arrested for DUI and was taken to a hospital (the suspect will likely face DUI charges later on).1
Therefore, police have a large degree of discretion when deciding whether to keep certain arrestees in custody or not. For instance, public intoxication is technically a misdemeanor punishable by up to six months in jail potentially. But if a person is committing no crime other than being intoxicated, the police can choose to keep them until they sober up and release them without further legal repercussions.2
Note that suspects who are arrested and kept in custody must see a magistrate for an arraignment within 48 hours, not including court holidays and Sundays. But if they bail out, then the arraignment will be postponed to a later time – at least ten days later. In many misdemeanor cases, defendants who bail out do not have to appear for their arraignment as long as they have a private attorney appearing on their behalf.3
- California Penal Code 849(b) PC – Arrest without warrant; Taking of person before magistrate or releasing from custody; Record of arrest. See also In re Jorge D. (Cal. App. 4th Dist., 2016), 246 Cal. App. 4th 363, 200 Cal. Rptr. 3d 878 and Armondo v. Department of Motor Vehicles (Cal. App. 1st Dist., 1993), 15 Cal. App. 4th 1174, 19 Cal. Rptr. 2d 399.
- Same. See PC 647f.
- Same. See PC 825.