If a judge doesnt see you within 72 hours of your arrest, are you supposed to be released?

Asked almost 4 years ago - Shafter, CA

the crime includes three felonies, a misdermeanor, and an infraction.

Attorney answers (3)

  1. Joseph Briscoe Dane


    Contributor Level 20

    Answered . Penal Code section 825(a)(1) says that a person arrested must be taken in front of a magistrate within 48 hours of their arrest.

    ... but . . .

    If the 48 hours expires when court's not in session, it goes to the next date. If the 48 hours falls on a day when court's in session, then the defendant can be taken in front of the judge any time during that court day. If your arrest occurs on Wednesday after the court is closed, then the defendant should go see the judge on Friday, as long as Friday isn't a holiday.

    The technical remedy for a person held beyond the 48 hour window is to file a petition for a writ of habeas corpus.

  2. Robert Marshall Sanger

    Contributor Level 15

    Answered . This may be a reiteration of another post. However, just in case:

    The 48 hour period under 825 is exclusive of weekends and holidays -- it is based on "court days" not actual days (or hours).

    The other time period of 48 hours was imposed by the United States Supreme Court in County of Riverside v. McLaughlin. There it is a real 48 hour requirement. However, this is usually satisfied by doing a "paper" review of probable cause. The officer writes a short version of the case supporting her or his version of probable cause. A judge reviews all of these statements without actually seeing the accused.

    Of course, if this pertains to an actual case, the person should retain a lawyer to deal with it and to obtain actual legal advice.

  3. Joseph Torri

    Contributor Level 17

    Answered . Habeas corpus motion should be filed if a person doesn't seee a judge within 48 hours. However, the answer given by the previous attorney is appropriate. It depends on what days the person is arrested and when the court is open.

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