Penal Code § 825 PC – Arraignments and Attorney Visits for Arrestees

California Penal Code § 825 PC requires that in-custody defendants be arraigned before a judge either

1. within 48 hours of arrest, or
2. on the next date thereafter in which court is in session.

While defendants are in custody following an arrest, law enforcement officers must allow visits with defense attorneys. Officers who do not allow attorney visits can be charged with a misdemeanor plus a $500 fine payable to the defendant.

The full text of the statute reads as follows:

825. (a)(1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays.
(2) When the 48 hours prescribed by paragraph (1) expire at a time when the court in which the magistrate is sitting is not in session, that time shall be extended to include the duration of the next court session on the judicial day immediately following. If the 48-hour period expires at a time when the court in which the magistrate is sitting is in session, the arraignment may take place at any time during that session. However, when the defendant’s arrest occurs on a Wednesday after the conclusion of the day’s court session, and if the Wednesday is not a court holiday, the defendant shall be taken before the magistrate not later than the following Friday, if the Friday is not a court holiday.

(b) After the arrest, any attorney at law entitled to practice in the courts of record of California, may, at the request of the prisoner or any relative of the prisoner, visit the prisoner. Any officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow the attorney to visit the prisoner when proper application is made, shall forfeit and pay to the party aggrieved the sum of five hundred dollars ($500), to be recovered by action in any court of competent jurisdiction.

Legal Analysis

California Penal Code 825 PC requires arrestees to be taken before a magistrate judge and arraigned within 48 hours of the arrest, but there are exceptions. The 48-hour period tolls (pauses) during court holidays and Sundays.

• If the 48-hour period expires when court is not in session, the arrestee must be arraigned on the next judicial day.
• If someone gets arrested on a Wednesday evening, he/she must be arraigned by that Friday (unless one of those days is a court holiday).¹

In addition, PC 825 requires law enforcement officers to allow attorneys to visit inmates following an arrest. Officers who fail to allow lawyer visits face misdemeanor charges, punishable by up to six months in jail and/or up to $1,000 in fines. Plus, the officer is required to pay the inmate $500. Note that it does not matter whether the officer willfully refused the attorney visit or simply neglected to allow the attorney visit to happen.²

In many cases, defendants can bail out shortly after the arrest. When this happens, the arraignment is typically delayed for at least 10 days. Either way, defendants are allowed to have their attorney with them during the arraignment. If the defendant bailed out, the attorney may be able to appear without the defendant having to show up him/herself.³

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Legal References