Misdemeanor Arrest: Your Right To Release On Citation

When someone is arrested for a misdemeanor offense, such as a first-offense DUI or misdemeanor Domestic Violence, they are usually issued a citation and released. When the officer decides to issue a citation, the defendant must sign the citation, giving their promise to appear at a specific Orange County court at a specific time and date. If the defendant, or their Orange County criminal defense lawyer doesn’t show up for court at the designated time and place, the judge will issue a “bench warrant” for the defendant’s arrest. If the defendant refuses to sign a citation, the officer will arrest the defendant and take them before a magistrate or judge.

However, criminal defense attorneys in Orange County know that a misdemeanor arrest does not mean that you will automatically be released on citation. Although the law generally requires that a defendant charged with only a misdemeanor must be cited and released, there are specific instances laid out in California Penal Code Section 853.6 where a police officer can take the defendant into custody where bail will be set. These instances include, but are not limited to, the following:

1)      Where the arrestee is so intoxicated that they are a danger to themselves or others;

2)      Where the arrestee needs medical attention and cant care for their own safety;

3)      Where the arrestee has a warrant out for their arrest or cannot produce satisfactory identification;

4)      Where immediate release would somehow jeopardize prosecution of the offense;

5)      Where there is a good chance that the offense would continue if the person were not taken into custody—this often happens in situations of ASSAULT AND BATTERY;

6)      Where there is reason to believe that the defendant will NOT appear as promised; and

7)      When the driver is arrested for DUI, whether DUI with injury, drug DUI or DUI with priors.

Thus, in cases of most misdemeanors, such as Criminal Threats or theft, the defendant is entitled to release on citation. However, in the case of any DUI arrest, the defendant is not entitled to release on citation. Thus, in many counties across California, even those arrested for a non-injury first-offense DUI are required to post bail before they can be released from the Orange County jail. In Orange County however, most of those arrested for first-offense DUI are released on citation without posting bail. This is a policy based on overcrowding in the Orange County jail.

Where bail is required, the amount is usually determined by the Orange County Bail Schedule. This document lists suggested bail amounts for specific crimes. For example, the bail amount set for a second-offense DUI is $10,000.00. This means that the defendant, or more likely someone on the defendant’s behalf, will give that amount to the court as surety for the defendant’s appearance in court. If the defendant, or their DUI Attorney, doesn’t appear in court at the appointed time and place, this amount is forfeited.

More commonly, the defendant’s DUI Lawyer will put the defendant in contact with a bail bondsman. The bondsman will charge the defendant a specific sum of money, usually ten percent of the bail amount, and will then post the entire bail amount on the defendant’s behalf. The sum paid to the bail agent is non-refundable. When the case is over, the bail bondsman gets the full ten thousand dollars refunded and makes a thousand dollar profit. However, if the defendant runs away and doesn’t show up for court, the bail bondsman loses the entire ten thousand dollars, which is forfeited to the court.

If you have been arrested for a crime call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced CRIMINAL DEFENSE LAWYER. You can also visit us at www.ejesquire.com. We have offices in Costa Mesa and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.