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New Reason for Non-Release of Misdemeanor Arrestee on Citation: Prior and Current Theft Issues

On September 30th 2022, the Governor of California approved a new bill that would prohibit the release of persons with a prior record of misdemeanor or felony theft arrest.

The amendment introduced by the bill (AB 2294) seeks to prevent the likelihood of a repeat theft offence.

A person arrested for a misdemeanor offence has the right to be released as long as long as they promise to appear in court at a specified date (this promise is effected through a citation).

However, if the police officer believes the offender:

  • Will not appear in court
  • Is likely to commit the same offence if released

Then the officer of the law can issue a non-release form and detain the offender.

Amendment of Penal Code 853.6 Reasons for Non-Release

Penal Code 853.6 requires police offices to issue a citation for misdemeanors instead of arresting the offender.

The Statute states as follows:

853.6. (a) (1) When a person is arrested for an offense declared to be a misdemeanor, including a violation of a 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 the officer's 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 the officer's superior determines that the person should be released, the officer or the officer's superior shall prepare a written notice to appear in a court.

The statute further goes on to provide exceptions where a release is not possible, citing the following possible reasons why a police officer may not release an offender:

  • Where a person is intoxicated and could harm self or other people.
  • If the offender requires medical assistance but cannot safely seek such assistance.
  • If during a routine traffic stop, the police officer determines the offender has violated California Vehicle Code 40302 and 40303. Such violations may include a DUI, or refusing to show identification.
  • There is a warrant or warrants out for the offender's arrest.
  • The person's identification documents are questionable.
  • Releasing the person would jeopardize prosecution of the offense for which the offender is arrested, or other offenses.
  • If releasing the person would endanger other people or property or result in the person repeating or resuming the crime.
  • The offender refuses to sign the notice to appear, or demands to see a magistrate immediately.
  • The office determines the offender will likely not honor the citation appear.
  • The offender is subject to Section 1270.1 on bail hearing and O.R release.

The amended penal code now includes the following additional reasons for non-release:

  • If, in the past six months, the person committed a felony or misdemeanor theft at a store, for which they were arrested, convicted, or received a citation.
  • The arresting officer has a reasonable basis (probable cause) to believe that the offender is guilty of organized retail theft. Penal Code § 490.4 PC defines organized retail theft as a crime where a person or group of people will create a distraction in a retail store and then steal products. It is different from shoplifting, petty theft or burglary.
What to do in Case of an Arrest?

In case you are arrested for a misdemeanor, your one phone call should be to the Johnson Criminal Law Group at (949) 622-5522.

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