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Section 1.5 Penal Code Section 849(b)

California Penal Code Section 849(b) authorizes peace officers to release arrested persons from custody due to insufficient grounds to file a complaint against that person (Section 849(b)(1)), or because that person was under the influence of alcohol or drugs and no further action is desirable (Sections 849(b)(2) and (3)).

• Based in part on statistics published by the State, the San Francisco Police Department has been criticized by the District Attorney"s Office and other City agencies for its under-utilization of PC 849(b). However, the SFPD does not report all 849(b) releases to the State, as confirmed by a tabulation of 849(b) release forms by the Budget Analyst"s Office.

• The DA further advises that the Police Department should issue more 849(b)(1) releases, as the DA receives a large number of arrest cases from the Police Department in which there are insufficient grounds to file charges.

• As long as the Police Department is able to substantiate that arrests are being made based on the probable cause standard, it is appropriate for the Police Department to leave the decision not to prosecute a case to the District Attorney. However, the Police Department should improve its tracking and reporting of Section 849(b) releases to the State.

Section 849(b) of the California Penal Code (PC) states that a peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:

(1) He or she is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested;

(2) The person was arrested for intoxication only, and no further proceedings are desirable; or

(3) The person was arrested only for being under the influence of a controlled substance or drug and such person is delivered to a facility or hospital for treatment and no further proceedings are desirable.

PC Section 849(b) is used by law enforcement agencies throughout the State to release from custody prisoners who have been arrested for non-violent offenses in cases (a) where there is insufficient evidence and/or (b) which do not justify the expense of incarceration, partially in order to lessen jail overcrowding.

Based in part on statistics published by the State Department of Justice"s Office of Criminal Justice Statistics, the San Francisco Police Department has been criticized by the District Attorney"s Office and other City agencies for its under-utilization of PC Section 849(b), especially when compared to other Bay Area counties. Based on these statistics, San Francisco issued 2,360 PC 849(b) releases in 1995, which represents approximately 5.0 percent of adult arrests, compared to the median of 8.7 percent of adult arrests for four other Bay Area counties (Alameda, Contra Costa, Santa Clara and San Mateo). However, according to the Police Department, the Police Department does not report all 849(b) releases to the State, so these statistics are inaccurate. This has been confirmed by the DOJ"s Office of Criminal Justice Statistics.

Based on a review of a sample of 849(b) release forms issued by the SFPD, the Budget Analyst estimates that the SFPD in fact issues approximately 6,800 PC 849(b) releases per year, or 4,440 more than the 2,360 PC 849(b) releases reported to the State.

The Use of PC Section 849(b)(1) by the Police Department

Staff from the District Attorney"s Office have also advised that the SFPD does not release a sufficient number of detainees based on Section 849(b)(1) (i.e., insufficient grounds). According to the DA"s Office, the DA is receiving a large number of arrest cases from the Police Department for which formal charges cannot be filed because there are insufficient grounds to successfully prosecute the case. DA staff advise that such cases could be discarded by either the arresting Police Officer, his/her commanding Sergeant or by the Police Inspector assigned to investigate the case, before they even reach the DA"s Office for review.

Because the 849(b) form used by the SFPD does not provide space for Police Officers to record the reason for which an arrested person is being released from custody, it cannot be determined what proportion of 849(b) releases in San Francisco are issued due to insufficient grounds (Section 849(b)(1)) or because the detainee was under the influence of alcohol or drugs (Section 849(b)(2) and 849(b)(3)). Thus, the number of 849(b)(1) releases made by the Police Department cannot be determined at this time.

Although the San Francisco Police Department has no formal written policy against the use of PC 849(b)(1), Police Department staff interviewed by the Budget Analyst have indicated that Section 849(b)(1) is most likely not widely used by the San Francisco Police Department. This is because the arresting Police Officer, his/her commanding Sergeant (who must approve each arrest), and/or the Police Inspector assigned to investigate the case may not feel qualified to make the decision of whether there are sufficient grounds to prosecute a case. According to Police Department staff, they would prefer to leave this decision to the DA, who has specialized training and expertise in this area.

As long as the Police Department is able to substantiate that it is making arrests based on the probable cause standard, and is therefore meeting the State"s minimum standard for making arrests, it is appropriate for the Police Department to leave the decision of whether there are sufficient grounds to prosecute the case to the District Attorney. Nevertheless, the implementation of our recommendations in Section 1.1 to assign Inspectors to the district stations and authorize them to review, assess and possibly disapprove certain arrests may result in an increase in the number of 849(b)(1) releases.

In any case, the Police Department should improve the tracking of Section 849(b) releases by (a) revising the 849(b) form currently used by the SFPD so that it includes information on the type of offense (e.g., felony or misdemeanor) and which subsection of PC 849(b) the release pertains to (849(b)(1), (2) or (3)). In addition, the Police Department should provide more accurate statistics on the use of 849(b) to the State.

Conclusions

California Penal Code Section 849(b) authorizes peace officers to release arrested persons from custody due to insufficient grounds to file a complaint against that person (Section 849(b)(1)), or because that person was under the influence of alcohol or drugs and no further action is desirable (Sections 849(b)(2) and (3)).

Based in part on statistics published by the State, the San Francisco Police Department has been criticized by the District Attorney"s Office and other City agencies for its under-utilization of PC 849(b). However, the SFPD does not report all 849(b) releases to the State, as confirmed by a tabulation of 849(b) release forms by the Budget Analyst"s Office.

The DA further advises that the Police Department should issue more 849(b)(1) releases, as the DA receives a large number of arrest cases from the Police Department in which there are insufficient grounds to file charges.

As long as the Police Department is able to substantiate that arrests are being made based on the probable cause standard, it is appropriate for the Police Department to leave the decision not to prosecute a case to the District Attorney. However, the Police Department should improve its tracking and reporting of Section 849(b) releases to the State.

Recommendations

The Deputy Chief of Administration should:

1.5.1 Improve the tracking of Section 849(b) releases by revising the 849(b) release form so that it includes information on the type of offense (e.g. felony or misdemeanor) and which subsection of PC 849(b) the release pertains to (849(b)(1), (2) or (3)).

1.5.2 Provide accurate statistics on the use of PC 849(b) to the State.

Costs and Benefits

These recommendations could be implemented using existing staff and resources within the Police Department.

The benefits include improved record-keeping and the reporting of accurate statistics to the public.

Last updated: 8/18/2009 1:51:56 PM