(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:

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Terms Used In California Penal Code 849

  • Arrest: Taking physical custody of a person by lawful authority.
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • county: includes "city and county". See California Penal Code 7
  • magistrate: signifies any one of the officers mentioned in Section 808. See California Penal Code 7
  • peace officer: signify any one of the officers mentioned in Chapter 4. See California Penal Code 7
  • person: includes a corporation as well as a natural person. See California Penal Code 7

(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.

(c) The record of arrest of a person released pursuant to paragraph (1), (3), or (5) of subdivision (b) shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.

(Amended by Stats. 2017, Ch. 566, Sec. 1. (SB 238) Effective October 7, 2017.)

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