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California Penal Code Section 853.6

Legal Research Home > California Laws > Penal Code > California Penal Code Section 853.6

853.6.  (a) (1) In any case in which a person is arrested for an
offense declared to be a misdemeanor, including a violation of any
city or county ordinance, and does not demand to be taken before a
magistrate, that person shall, instead of being taken before a
magistrate, be released according to the procedures set forth by this
chapter, although nothing prevents an officer from first booking an
arrestee pursuant to subdivision (g). If the person is released, the
officer or his or her superior shall prepare in duplicate a written
notice to appear in court, containing the name and address of the
person, the offense charged, and the time when, and place where, the
person shall appear in court. If, pursuant to subdivision (i), the
person is not released prior to being booked and the officer in
charge of the booking or his or her superior determines that the
person should be released, the officer or his or her superior shall
prepare a written notice to appear in a court.
   (2) In any case in which a person is arrested for a misdemeanor
violation of a protective court order involving domestic violence, as
defined in subdivision (b) of Section 13700, or arrested pursuant to
a policy, as described in Section 13701, the person shall be taken
before a magistrate instead of being released according to the
procedures set forth in this chapter, unless the arresting officer
determines that there is not a reasonable likelihood that the offense
will continue or resume or that the safety of persons or property
would be imminently endangered by release of the person arrested.
Prior to adopting these provisions, each city, county, or city and
county shall develop a protocol to assist officers to determine when
arrest and release is appropriate, rather than taking the arrested
person before a magistrate. The county shall establish a committee to
develop the protocol, consisting of, at a minimum, the police chief
or county sheriff within the jurisdiction, the district attorney,
county counsel, city attorney, representatives from domestic violence
shelters, domestic violence councils, and other relevant community
agencies.
   (3) This subdivision shall not apply to the crimes specified in
Section 1270.1, including crimes defined in each of the following:
   (A) Paragraph (1) of subdivision (e) of Section 243.
   (B) Section 273.5.
   (C) Section 273.6, if the detained person made threats to kill or
harm, has engaged in violence against, or has gone to the residence
or workplace of, the protected party.
   (D) Section 646.9.
   (4) Nothing in this subdivision shall be construed to affect a
defendant's ability to be released on bail or on his or her own
recognizance, except as specified in Section 1270.1.
   (b) Unless waived by the person, the time specified in the notice
to appear shall be at least 10 days after arrest if the duplicate
notice is to be filed by the officer with the magistrate.
   (c) The place specified in the notice shall be the court of the
magistrate before whom the person would be taken if the requirement
of taking an arrested person before a magistrate were complied with,
or shall be an officer authorized by that court to receive a deposit
of bail.
   (d) The officer shall deliver one copy of the notice to appear to
the arrested person, and the arrested person, in order to secure
release, shall give his or her written promise to appear in court as
specified in the notice by signing the duplicate notice which shall
be retained by the officer, and the officer may require the arrested
person, if he or she has no satisfactory identification, to place a
right thumbprint, or a left thumbprint or fingerprint if the person
has a missing or disfigured right thumb, on the notice to appear.
Except for law enforcement purposes relating to the identity of the
arrestee, no person or entity may sell, give away, allow the
distribution of, include in a database, or create a database with,
this print. Upon the signing of the duplicate notice, the arresting
officer shall immediately release the person arrested from custody.
   (e) The officer shall, as soon as practicable, file the duplicate
notice, as follows:
   (1) It shall be filed with the magistrate if the offense charged
is an infraction.
   (2) It shall be filed with the magistrate if the prosecuting
attorney has previously directed the officer to do so.
   (3) The duplicate notice and underlying police reports in support
of the charge or charges shall be filed with the prosecuting attorney
in cases other than those specified in paragraphs (1) and (2).
   If the duplicate notice is filed with the prosecuting attorney, he
or she, within his or her discretion, may initiate prosecution by
filing the notice or a formal complaint with the magistrate specified
in the duplicate notice within 25 days from the time of arrest. If
the prosecution is not to be initiated, the prosecutor shall send
notice to the person arrested at the address on the notice to appear.
The failure by the prosecutor to file the notice or formal complaint
within 25 days of the time of the arrest shall not bar further
prosecution of the misdemeanor charged in the notice to appear.
However, any further prosecution shall be preceded by a new and
separate citation or an arrest warrant.
   Upon the filing of the notice with the magistrate by the officer,
or the filing of the notice or formal complaint by the prosecutor,
the magistrate may fix the amount of bail that in his or her
judgment, in accordance with Section 1275, is reasonable and
sufficient for the appearance of the defendant and shall endorse upon
the notice a statement signed by him or her in the form set forth in
Section 815a. The defendant may, prior to the date upon which he or
she promised to appear in court, deposit with the magistrate the
amount of bail set by the magistrate. At the time the case is called
for arraignment before the magistrate, if the defendant does not
appear, either in person or by counsel, the magistrate may declare
the bail forfeited, and may, in his or her discretion, order that no
further proceedings shall be had in the case, unless the defendant
has been charged with a violation of Section 374.3 or 374.7 of this
code or of Section 11357, 11360, or 13002 of the Health and Safety
Code, or a violation punishable under Section 5008.7 of the Public
Resources Code, and he or she has previously been convicted of a
violation of that section or a violation that is punishable under
that section, except in cases where the magistrate finds that undue
hardship will be imposed upon the defendant by requiring him or her
to appear, the magistrate may declare the bail forfeited and order
that no further proceedings be had in the case.
   Upon the making of the order that no further proceedings be had,
all sums deposited as bail shall immediately be paid into the county
treasury for distribution pursuant to Section 1463.
   (f) No warrant shall be issued for the arrest of a person who has
given a written promise to appear in court, unless and until he or
she has violated that promise or has failed to deposit bail, to
appear for arraignment, trial, or judgment or to comply with the
terms and provisions of the judgment, as required by law.
   (g) The officer may book the arrested person at the scene or at
the arresting agency prior to release or indicate on the citation
that the arrested person shall appear at the arresting agency to be
booked or indicate on the citation that the arrested person shall
appear at the arresting agency to be fingerprinted prior to the date
the arrested person appears in court. If it is indicated on the
citation that the arrested person shall be booked or fingerprinted
prior to the date of the person's court appearance, the arresting
agency at the time of booking or fingerprinting shall provide the
arrested person with verification of the booking or fingerprinting by
making an entry on the citation. If it is indicated on the citation
that the arrested person is to be booked or fingerprinted, the
magistrate, judge, or court shall, before the proceedings begin,
order the defendant to provide verification that he or she was booked
or fingerprinted by the arresting agency. If the defendant cannot
produce the verification, the magistrate, judge, or court shall
require that the defendant be booked or fingerprinted by the
arresting agency before the next court appearance, and that the
defendant provide the verification at the next court appearance
unless both parties stipulate that booking or fingerprinting is not
necessary.
   (h) A peace officer shall use the written notice to appear
procedure set forth in this section for any misdemeanor offense in
which the officer has arrested a person without a warrant pursuant to
Section 836 or in which he or she has taken custody of a person
pursuant to Section 847.
   (i) Whenever any person is arrested by a peace officer for a
misdemeanor, that person shall be released according to the
procedures set forth by this chapter unless one of the following is a
reason for nonrelease, in which case the arresting officer may
release the person, except as provided in subdivision (a), or the
arresting officer shall indicate, on a form to be established by his
or her employing law enforcement agency, which of the following was a
reason for the nonrelease:
   (1) The person arrested was so intoxicated that he or she could
have been a danger to himself or herself or to others.
   (2) The person arrested required medical examination or medical
care or was otherwise unable to care for his or her own safety.
   (3) The person was arrested under one or more of the circumstances
listed in Sections 40302 and 40303 of the Vehicle Code.
   (4) There were one or more outstanding arrest warrants for the
person.
   (5) The person could not provide satisfactory evidence of personal
identification.
   (6) The prosecution of the offense or offenses for which the
person was arrested, or the prosecution of any other offense or
offenses, would be jeopardized by immediate release of the person
arrested.
   (7) There was a reasonable likelihood that the offense or offenses
would continue or resume, or that the safety of persons or property
would be imminently endangered by release of the person arrested.
   (8) The person arrested demanded to be taken before a magistrate
or refused to sign the notice to appear.
   (9) There is reason to believe that the person would not appear at
the time and place specified in the notice. The basis for this
determination shall be specifically stated.
   (10) The person was subject to Section 1270.1.
   The form shall be filed with the arresting agency as soon as
practicable and shall be made available to any party having custody
of the arrested person, subsequent to the arresting officer, and to
any person authorized by law to release him or her from custody
before trial.
   (j) Once the arresting officer has prepared the written notice to
appear and has delivered a copy to the person arrested, the officer
shall deliver the remaining original and all copies as provided by
subdivision (e).
   Any person, including the arresting officer and any member of the
officer's department or agency, or any peace officer, who alters,
conceals, modifies, nullifies, or destroys, or causes to be altered,
concealed, modified, nullified, or destroyed, the face side of the
remaining original or any copy of a citation that was retained by the
officer, for any reason, before it is filed with the magistrate or
with a person authorized by the magistrate to receive deposit of
bail, is guilty of a misdemeanor.
   If, after an arrested person has signed and received a copy of a
notice to appear, the arresting officer determines that, in the
interest of justice, the citation or notice should be dismissed, the
arresting agency may recommend, in writing, to the magistrate that
the charges be dismissed. The recommendation shall cite the reasons
for the recommendation and shall be filed with the court.
   If the magistrate makes a finding that there are grounds for
dismissal, the finding shall be entered in the record and the charges
dismissed.
   Under no circumstances shall a personal relationship with any
officer, public official, or law enforcement agency be grounds for
dismissal.
   (k) (1) A person contesting a charge by claiming under penalty of
perjury not to be the person issued the notice to appear may choose
to submit a right thumbprint, or a left thumbprint if the person has
a missing or disfigured right thumb, to the issuing court through his
or her local law enforcement agency for comparison with the one
placed on the notice to appear. A local law enforcement agency
providing this service may charge the requester no more than the
actual costs. The issuing court may refer the thumbprint submitted
and the notice to appear to the prosecuting attorney for comparison
of the thumbprints. When there is no thumbprint or fingerprint on the
notice to appear, or when the comparison of thumbprints is
inconclusive, the court shall refer the notice to appear or copy
thereof back to the issuing agency for further investigation, unless
the court finds that referral is not in the interest of justice.
   (2) Upon initiation of the investigation or comparison process by
referral of the court, the court shall continue the case and the
speedy trial period shall be tolled for 45 days.
   (3) Upon receipt of the issuing agency's or prosecuting attorney's
response, the court may make a finding of factual innocence pursuant
to Section 530.6 if the court determines that there is insufficient
evidence that the person cited is the person charged and shall
immediately notify the Department of Motor Vehicles of its
determination. If the Department of Motor Vehicles determines the
citation or citations in question formed the basis of a suspension or
revocation of the person's driving privilege, the department shall
immediately set aside the action.
   (4) If the prosecuting attorney or issuing agency fails to respond
to a court referral within 45 days, the court shall make a finding
of factual innocence pursuant to Section 530.6, unless the court
finds that a finding of factual innocence is not in the interest of
justice.
   (5) The citation or notice to appear may be held by the
prosecuting attorney or issuing agency for future adjudication should
the arrestee who received the citation or notice to appear be found.
   (l) For purposes of this section, the term "arresting agency"
includes any other agency designated by the arresting agency to
provide booking or fingerprinting services.

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Last modified: March 17, 2014