Post-Arrest Processing

Following an arrest, Louisiana law mandates specific judicial reviews within strict time limits to protect the defendant’s constitutional rights. These initial proceedings ensure that no person is detained without legal justification and that the right to counsel and bail is addressed promptly.

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The Post-Arrest Timeline

The initial criminal process follows a strict timeline, but the path depends on whether the defendant bonds out early:

1. Arrest & Booking — Defendant is taken into custody.
2. Initial Bail Check — Bail may be set immediately via schedule or warrant.
3. 48-Hour Determination — Judicial review of probable cause (if warrantless). Bail is typically set here if not earlier.
4. 72-Hour First Appearance — Only for those still in custody. Referral for counsel and review of bail.

La. Const. Art. I, § 13

1. Bail Determination & Release

CCrP 317

Bail can be set at multiple points before the 72-hour hearing:

• Bail Schedule: For minor offenses, a pre-set schedule may allow immediate bonding.
• Arrest Warrant: The judge issuing the warrant may have already fixed the bail amount.
• 48-Hour Review: If arrested without a warrant, the magistrate sets bail when finding probable cause.

If the defendant posts bond at any of these stages, they are released and do not attend the 72-hour hearing. They will instead appear for Arraignment in District Court.

2. The 48-Hour Probable Cause Determination (Gerstein)

If a defendant is arrested without a warrant, the Fourth Amendment requires a prompt judicial determination of probable cause to justify continued detention. In Louisiana, this is codified in La. C.Cr.P. art. 230.2.

CCrP 230CCrP 230.2

Purpose

The sole purpose of this determination is to decide whether there is sufficient evidence to detain the defendant. It is not a trial and does not determine guilt.

Procedure

• Timing: Must occur within 48 hours of arrest.
• Nature: Non-adversarial (ex parte). The defendant and counsel are typically not present.
• Evidence: The magistrate reviews the affidavit of probable cause (police report) submitted by law enforcement.
• Standard: “Probable Cause” to believe an offense was committed and the defendant committed it.

Outcomes

• Probable Cause Found: The defendant remains in custody and proceeds to the 72-hour appearance.
• No Probable Cause: The defendant must be released on their own recognizance (ROR). Note: This does not dismiss the charges; it only ends the custodial detention.

CCrP 230CCrP 230.2

3. The 72-Hour First Appearance

Within 72 hours of arrest (excluding weekends and holidays), every arrested person who remains in custody must be brought before a judge or magistrate. This is often called the “72-hour hearing” or “First Appearance.”

Purpose

The purpose is to ensure the defendant understands their rights and to address representation and release for those who have not yet bonded out.

Procedure

At this hearing, the court must:

1. Advise of Rights: Inform the defendant of the charges and the right to remain silent.
2. Refer for Counsel: If the defendant requests counsel and claims indigency, refer the matter to the Public Defender’s Office or District Court for appointment. (JPs do not have authority to appoint counsel).
3. Review/Set Bail: If bail was not previously set, or if the defendant requests a reduction, the court addresses bail.

CCrP 230CCrP 230.1

3. Preliminary Examination vs. 48-Hour Determination

CCrP 292

It is critical to distinguish between the 48-Hour Determination and the Preliminary Examination.

Feature	48-Hour Determination (Art. 230.2)	Preliminary Examination (Art. 292)
Timing	Within 48 hours of arrest	Promptly after request (usually later)
Trigger	Warrantless Arrest	Request by State or Defense (Felony)
Nature	Non-adversarial (Paper review)	Adversarial (Live witnesses)
Purpose	Justify Detention (4th Amendment)	Justify Holding for Trial (Bind Over)
Outcome	Release ROR or Detain	Discharge or Hold for Trial

Gwen’s Law (Domestic Abuse)

For arrests involving domestic abuse battery, violation of protective orders, or stalking, Gwen’s Law imposes special requirements.

CCrP 313

• Contradictory Hearing: The court may (and sometimes must) hold a contradictory hearing before setting bail.
• Timing: Within 5 days of arrest (excluding weekends/holidays).
• Considerations: The court assesses the threat posed to the victim and community.

Role of the Justice of the Peace

JPs frequently conduct the 48-Hour Determination and 72-Hour First Appearance, especially in rural areas or when district judges are unavailable. However, for Preliminary Examinations, JPs have limited jurisdiction (Non-Capital/Non-Hard Labor only).

Related Topics

• Bail & Bonds — Detailed bail procedures
• Preliminary Examinations — The adversarial probable cause hearing
• Magistrate Authority — Overview of powers