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Citation in Lieu of Arrest

Citation in Lieu of Arrest

Pretrial Policy 

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Citation in Lieu of Arrest

A citation in lieu of arrest is permitted in most states for certain low-level crimes. A citation is a written order, in lieu of a warrantless arrest, that is issued by a law enforcement officer or other authorized official, requiring a person to appear in a designated court or governmental office at a specified time and date. Citations are commonly associated with traffic violations, local ordinances or infractions. Policies that apply citations to specified crimes affect what happens with regard to custody of a defendant either immediately before or after arrest. (An arrest is the point at which an arrestee is taken into custody, referred to as custodial arrest or continued custody.) Nineteen states allow citations to be issued after arrest, nine authorize prior to arrest, and 10 states allow both.

State laws most often apply citation in lieu of arrest to misdemeanor crimes. Two states—Louisiana and Oregon—permit citations for some felonies. Seven states do not specify crimes for which an officer has discretion to issue a citation. Laws in 10 states create a presumption that citations be issued for certain crimes and  under certain circumstances. For example, Maryland requires police officers to issue a citation for any misdemeanor that does not carry a penalty of imprisonment, most misdemeanors punishable by a maximum of 90 days imprisonment and for misdemeanor possession of marijuana.

State statutes guide the circumstances under which a citation can be issued, often determined by the class of the alleged crime and providing exceptions for certain crimes. The issuing authority is almost always required to consider one or more factors in determining whether or not to issue a citation. Even under circumstances in which there is presumption of citation, enumerated factors must first be considered. Generally, a custodial arrest must be made if one or more of these factors are present:

  • There are reasonable grounds to believe the person will not appear for court, or the person has a history of not appearing. Officers consider the arrestee’s residency, family, employment and other ties to the community, as well as matters of character.
  • There are reasonable grounds to believe a person poses a danger to others, himself or herself, to property, the community, or that the person will not cease committing the alleged crime.
  • The criminal record of the arrestee or outstanding warrants.
  • Detention upon arrest is deemed necessary to carry out legitimate investigation, or if prosecution of the current or other alleged offenses would be jeopardized if not taken into custody.
  • If the arrestee requires physical or mental health care, if the person is not able to care for herself or herself or if the person is intoxicated or under the influence of drugs or alcohol.

There are two common circumstances under which state laws generally prohibit a citation being issued:

  • The arrestee refuses to sign a written promise to appear or requests to be taken before a judge.
  • The person does not have or will not provide valid identification, identification is unable to be verified, or the person is unwilling to provide fingerprints.

The use of citations can contribute to lower jail populations and local cost savings by diverting from detention arrestees who pose little risk to public safety and are likely to appear for their court date. Citations issued before arrest also can have the effect of an arrest not being placed on a person’s criminal record.  Some legislatures have stated the intent of citations in statutory law. In Tennessee, the statute says:

“In cases in which:

  1. the public will not be endangered by the continued freedom of the suspected misdemeanant;
  2. the law enforcement officer has reasonable proof of the identity of the suspected misdemeanant; and
  3. there is no reason to believe the suspected misdemeanant will not appear as required by law,

the general assembly finds that the issuance of a citation in lieu of arrest of the suspected misdemeanant will result in cost savings and increased public safety by allowing the use of jail space    for dangerous individuals and/or felons and by keeping officers on patrol. Accordingly, the general assembly encourages all law enforcement agencies to so utilize misdemeanor citations and to encourage their personnel to use those citations when reasonable and according to law.” [§40-7-118(m)].
 
By providing an alternative to pretrial detention and release processes for certain defendants, citation in lieu of arrest can be considered a component of state pretrial policies.
 
The chart below provides more information on citation in lieu of arrest state laws.



50 State Chart | Citation in Lieu of Arrest

 


State &
Statute


For What Offenses Can
a Citation be Issued?


Exceptions


Presumption
of Citation


When is Citation Issued?


Who Issues Citation?
Alabama
§11-45-9.1
Class C Misdemeanors Offenses involving violence, threat of violence, alcohol or drugs. No After arrest Law enforcement officers
Alaska
§12.25.180
Misdemeanors Offenses involving violence to property or person; when there is probable cause that domestic abuse was involved. No Prior to arrest Peace officers
Arizona
§13-3903
Misdemeanors Not specified No After arrest Peace officers
Arkansas
No statute located
         
California
Penal Code §853.6
Misdemeanors Offenses involving domestic violence or abuse (unless the officer determines there is not a reasonable likelihood that the offense will continue). Offenses that require a bail hearing rather than release according to a bail schedule. Yes Either Law enforcement officers or their superiors.
Colorado
§16-3-105
Misdemeanors Domestic violence offenses No After arrest Law enforcement officers; responsible command officers.
Connecticut
§54-1h
Misdemeanors; offenses punishable by a maximum of one year imprisonment or a maximum fine of $1000. Not specified No After arrest Arresting officer
Delaware
11 Del. C. §1907
Misdemeanors Not specified No Not specified Peace officers
District of Columbia
No statue located
         
Florida
§901.28 superseded by R. Cr. P. 3.125
1st or 2nd degree misdemeanors. Not specified No After arrest Law enforcement officers
Georgia
No statute located
         
Hawaii
§ 803-6
Misdemeanors and petty misdemeanors. Not specified No Prior to arrest Police officers
Idaho
§19-3901
Misdemeanors Not specified No Not specified Law enforcement officers
Illinois
725, ILCS 5/107-12
When there are reasonable grounds to believe that a person is committing or has committed a crime. Not specified No Not specified Peace officers
Class C misdemeanors Not specified No After arrest Sheriff
Indiana
§35-33-4-1(f)
Misdemeanors Traffic misdemeanors No Not specified Law enforcement officers
Iowa
§ 805.1
When a crime has been committed in the presence of the police officer or there is reasonable grounds to believe that a crime has been committed. Offenses not eligible for pretrial release; stalking; domestic violence offenses resulting in injury, where there was intent to inflict injury, involving use of dangerous weapon, or where there was pressure applied to throat or neck or obstructing nose or mouth. No Either Peace officers
Kansas
§ 22-2408
Misdemeanors Traffic violations No After arrest Law enforcement officers
Kentucky
§ 431.015
Misdemeanors Violation of a protective order Yes Prior to arrest Peace officers
Misdemeanor offenses of driving under the influence; assault; sexual crimes; crimes involving firearms or weapons; 4th degree assault in a hospital room; 3rd degree criminal trespass; harassment; and aggravated driving under the influence. Violation of protective order No Prior to arrest Peace officers
Louisiana
C. Cr. P. Art 211
Misdemeanors; felony theft or illegal possession of stolen things if the value is between $500 and $1000; writing worthless checks. Not specified No Prior to arrest Peace officers
Maine
17-A § 15-A
When there is probable cause to believe a crime has been or is being committed. Not specified No Prior to arrest Law enforcement officers
Maryland
Cr. Pr. Law § 4-101
Misdemeanors that do not carry a penalty of imprisonment, any misdemeanor with a maximum penalty of 90 days or less, and possession of marijuana. Failure to comply with a peace order; violation of a condition of pretrial release while charged with a sex crime against a minor; possession of an electronic control device after conviction of a drug felony or violent crime; violation of any out of state domestic violence ordinance; violation of an interim, temporary or final protective order; abuse or neglect of an animal. Yes Either Peace officers
Massachusetts
No statute located
         
Michigan
§764.9c
Misdemeanors with a maximum of 93 days.  Not specified No Prior to arrest Police officers
Any offense less than felony. Domestic assault; violation of a protection order; crimes subject to mandatory confinement or mandatory condition of pretrial release. No Prior to arrest Authorized public servants
Minnesota
§626.862; §629.72
 
 
Not specified Stalking; domestic abuse; violation of a protection order;  violation of a domestic abuse no contact order. No Either Peace officers
Stalking; domestic abuse; violation of a protection order; violation of a domestic abuse no contact order. Not specified Yes After arrest Officer in charge of police station; county sheriff.
Mississippi
§ 99-3-18
Misdemeanors Not specified No After arrest Police officers; booking officers; superiors.
Missouri
No statute located
         
Montana
§ 46-6-310; §46-6-311
When the officer has probable cause to believe a person has committed a crime. Partner or family member assault involving injury to the victim, use of a weapon, violation of restraining order. No Not specified Peace officers
Nebraska
§ 29-422
Misdemeanors Violations of protection order for domestic violence No Either Peace officers
Nevada
§ 171.1771; §171.177
Misdemeanors Misdemeanors that require a bail hearing No After arrest Peace officers
New Hampshire
§594:14
Misdemeanors Not specified No After arrest Peace officers
New Jersey
§ 2B:12-21 authorizes R. Crim. P. Rule 3:4-1
Crimes committed in an officer’s presence. Not specified Yes After arrest Law enforcement officers
New Mexico
§ 31-1-6
Petty misdemeanors Not specified No After arrest Law enforcement officers
New York
Cr. P. Law §150.20; §140.10
 
 
 
 
 
 
Cr. P. Law §150.75
Any offense Class A, B, C, D felonies; 3rd degree rape; 3rd degree criminal sex act; 2nd degree escape; 1st degree absconding from a temporary release; absconding from a community treatment facility, 2nd degree bail jumping; violation of a protection order. No After arrest Police officers; authorized public servants.
Possession of marijuana. Not specified Yes After arrest Police officers
North Carolina
§ 15A-302
Misdemeanors Not specified No Not specified Law enforcement officers; other authorized persons.
North Dakota
§29-05-31 superseded by R. Cr. P. 5(e)
Crimes committed in an officer’s presence. Not specified No Either Law enforcement officers; prosecuting attorney must duly issue for felony offenses.
Ohio
§ 2935.26
Minor misdemeanors Not specified Yes Prior to arrest Law enforcement officers
Oklahoma
22 § 209
Misdemeanors Not specified No After arrest Law enforcement officers
Oregon
§ 133.055
Misdemeanors; felonies authorized by law to be reduced to a misdemeanor. Domestic disturbance when the officer has probable cause to believe that an assault has occurred between family or household members or believes that an assault has occurred which has placed a person in fear of imminent danger. No Not specified Peace officers
Pennsylvania
R. Cr. P. 519 & 441
2nd degree misdemeanors; 1st degree driving under the influence; crimes punishable by a maximum of 90 days. Not specified Yes After arrest Law enforcement officers
Rhode Island
§ 12-7-11; §12-7-12
Misdemeanors Not specified No Either Peace officers; officer in charge of a police station.
South Carolina
§56-7-10; §56-7-15; §22-3-540
Offenses enumerated in §56-7-10; offenses under the jurisdiction of a magistrate (maximum penalty of 30 days jail and $500 fine) that are committed in the presence of a law enforcement officer. Not specified No Not specified Law enforcement officers
South Dakota
No statute located
         
Tennessee
§ 40-7-118;  §40-7-120
Misdemeanors Driving under the influence unless the offender was admitted to a hospital or detained for medical treatment for at least three hours; misdemeanor traffic offenses. Yes After arrest Peace officers
Shoplifting; writing bad checks; assault or battery if the officer believes there is a reasonable likelihood of a danger to another person; prostitution if the officer has knowledge of past conduct of the defendant in prostitution or has reasonable cause to believe the prostitution will continue. Not specified No After arrest Peace officers
Misdemeanors Not specified No After arrest Sheriff or designee.
Texas
C. Cr. P. Art. 14.06.
Class C misdemeanor; Class A or B misdemeanor of driving while license invalid, contraband in correctional facility, theft of service, theft, graffiti, criminal mischief, possession of substance penalty group 2-A, or possession of marijuana. Public intoxication No After arrest Peace officers
Utah
§ 77-7-18
Misdemeanors Not specified No Either Peace officers; public officials charged with enforcement of law; port of entry agents; authorized volunteers.
Vermont
R. Cr. P. 3
Misdemeanors committed outside the presence of a officer. Assault against a family member; operating a vehicle under the influence; hate-motivated crimes, stalking; simple assault; reckless endangerment; cruelty to children; failure to comply with sex offender registration; abuse of a vulnerable adult; violation of a protection order. No Prior to arrest Law enforcement officers
Virginia
§ 19.2-74
Class 1 – 4 misdemeanors. Driving while intoxicated; motor vehicle offenses; public drunkenness. Yes After arrest Arresting officer
Washington
CrRLJ 2.1
Misdemeanors or gross misdemeanors committed in the presence of an officer. Offenses enumerated in §10.31.100 No Either Police officers
West Virginia
§ 62-1-5a
Misdemeanors; persons being detained for investigation of shoplifting. Offenses involving injury to a person No Prior to arrest Law enforcement officers
Wisconsin
§ 968.085;§ 968.075; § 813.12; § 813.122; § 813.125
Misdemeanors Domestic abuse offenses if believed abuse will continue, involves physical injury or the arrestee is the predominant agressor; violation of protection order involving domestic abuse, child abuse or harassment. No Either Law enforcement officers
Wyoming
§ 7-2-103
Misdemeanors Not specified No After arrest Peace officers; district or city attorney.
Source: National Conference of State Legislatures, 2013

 
Court rule and case law provide further guidance regarding issuing citations in lieu of arrest. Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.
 
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database. 

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