(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 the magistrate.
(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.
(6)The person was arrested and subsequently delivered or referred to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, the organization agrees to accept the delivery or referral, and no further proceedings are desirable.
(c)The record of arrest of a person released pursuant to paragraph (1), (3), (5), or (6) of subdivision (b) shall include a
record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.
Notes of Decisions
Cited in
51
cases (
3 in the last 5 years), 1943–2025 · leading case:
Culombe v. Connecticut, 367 U.S. 568 (1961).
Culombe v. Connecticut, 367 U.S. 568 (1961).
· cites it 2× “Some jurisdictions fix specific periods of permissible pre-examination detention. See Cal. Penal Code, § 825 (without unnecessary delay; two-day maximum); Mo.”
People v. Pettingill, 578 P.2d 108 (Cal. 1978).
· cites it 2× “) If the arrest, as here, is without a warrant, "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…”
Jones v. Taibbi, 512 N.E.2d 260 (Mass. 1987).
· cites it 2× “" Cal. Penal Code § 849 (c) (Deering 1985).”
Gillan v. City of San Marino, 55 Cal. Rptr. 3d 158 (Cal. Ct. App. 2007).
“2 Penal Code section 849, subdivision (b) states: “Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: [f] (1) He or she is satisfied that there are insufficient grounds for making a…”
People v. Wein, 326 P.2d 457 (Cal. 1958).
· cites it 2× “He claims that there was "unnecessary delay" (Pen. Code, § 849) and that his constitutional rights were thus violated, citing Mallory v.”
People v. Lopez, 453 P.3d 150 (Cal. 2019).
“11 Citation and release is employed in a wide range of nonvehicle circumstances, from jaywalking to fare evasion to cyclist moving violations, yet no one argues that failure to 28 PEOPLE v.”
People v. Bland, 884 P.2d 312 (Colo. 1994).
· cites it 2× “[23] Wayne LaFave explains that the seemingly redundant phrase "custodial arrest" is distinguishable from those arrests that are followed by release at the scene.”
People v. Longwill, 538 P.2d 753 (Cal. 1975).
· cites it 2× “After a suspect is arrested for public intoxication, but before he is incarcerated, it is possible for him to be released by the arresting officer (Pen. Code, § 849, subd. (b)(2)), or by the arresting officer's superior, by the booking officer, or by the booking officer's…”
Armondo v. Dep't of Motor Vehs., 93 Cal. Daily Op. Serv. 3531 (Cal. Ct. App. 1993).
· cites it 2× “” (Pen. Code, §§ 849, subd. (c), 849.5.) 3 Moreover, a person arrested and released under the above provisions must be issued a certificate describing the action as a detention.”
Youngblood v. Gates, 200 Cal. App. 3d 1302 (Cal. Ct. App. 1988).
· cites it 2× “" Further, Penal Code section 849, subdivision (a) provides: "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…”
People v. Ratcliffe, 124 Cal. App. 3d 808 (Cal. Ct. App. 1981).
“) Penal Code section 849, subdivision (b)(1), provides for the release from custody of a person arrested without a warrant when there are insufficient grounds for making a criminal complaint against the person.”
People v. Hampton, 164 Cal. App. 3d 27 (Cal. Ct. App. 1985).
· cites it 2× “" [3] California Penal Code section 849 states: "(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…”
— Cal. Penal Code § 849(a) — 1 case
— Cal. Penal Code § 849(b) — 1 case
— Cal. Penal Code § 849(b)(1) — 2 cases
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