Chapter. (a) In any case where a person is not arrested upon a warrant and such person does not demand to be taken before a judge, the arresting officer or any other officer into whose custody the person is placed instead of taking such person before a judge as required by § 45.10, may release him pursuant to the procedure provided by this Chapter. (b) In making a determination whether to release any person pursuant to this Chapter an officer may consider any factors relevant to whether the person's release would be likely to create a risk of immediate harm to himself or others or to result in a failure of the person to appear when required. NOTE: Chapter 25 (commencing with § 25.10) is new but provides an alternative to arrest and detention where a peace officer apprehends a person accused of a crime. Compare former Rule 46(a)(1). These provisions are inspired by §§ 853.6 through 853.9 of the California Penal Code and §§ 2.1 through 2.5 of ABA, Project on Minimum Standards for Criminal Justice Pretrial Release (Approved draft 1968). Unlike the California procedure, the procedure provided here is not limited to cases involving a misdemeanor. In contrast to the ABA standards, release on a citation is never mandatory but rather always at the discretion of the arresting officer (or other officers into whose custody the person comes). The procedure is available only where the arrest is without a warrant. Where a warrant has been issued, the officer must obey its commands. It seems impossible to establish in advance absolute guidelines for release. Factors which may be relevant in certain cases include: the nature and circumstances of the offense, the accused's place and length of residence, employment, length of employment, family relationships, past history of response to legal process, past criminal record, and present physical and mental condition and attitude. To be more specific, has the person refused to identify himself, is he intoxicated, is he threatened by or threatening to cause further violence. Obviously each of these factors would
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mitigate against release. On the other hand, if the offense is minor one, the person is cooperative and appears to have substantial ties to the community so that there seems little likelihood that he will fail to appear as required, release upon a citation would be appropriate. Section 25.10 refers to the arresting officer and any other officer whose custody the arrested person is placed. In some cases, the officer in the field may exercise his discretion to release the arrested person. However, in others, the person will be arrested, brought to the station house and booked. Often there may be no reason to further detain the person after the booking and the booking officer is therefore also given the discretion to release. Of course, nothing in this Chapter affects the authority of the officer to conduct an otherwise lawful search as an incident to the initial arrest.