If you are arrested for a criminal offense, you cannot be held in jail forever without seeing a judge. The 36 and 48-hour rules protect against such inhumane scenarios. If someone you know has recently been arrested, understanding these time limitation rules and how each county applies them, will help you understand when that person may see a judge or be released.
36-Hour Rule: Appearance Before a Judge
Within 36 hours of arrest, a person must be brought in front of a judge without unnecessary delay. Importantly, the 36 hours does not include the day of arrest, Sundays, or legal holidays. For example, if you are arrested at 11:30 p.m. on a Tuesday, your thirty-six hours will start running at midnight on Wednesday and expire Thursday at noon. If you are arrested on Saturday at 11:30 p.m., the 36 hours will start running at midnight on Monday and expire Tuesday at noon.
What happens if a person is held in jail in violation of the 36-hour rule and you have not seen a judge yet? In felony, gross misdemeanor, and misdemeanor cases (DWI), the person arrested must be released if the 36-hour rule is violated. The court may order an extension of time “for cause” in some cases (See Rule 34.02).
48-Hour Rule: Probable Cause Determination
Within 48-hours of arrest, a judge must make a probable cause determination without unnecessary delay. Unlike the 36-hour rule, the 48 hours starts immediately upon arrest and includes the day of the arrest, Sundays, and legal holidays. If charges are filed within 48 hours, or probable cause for the charge is found during that time period, then the person will remain in custody. However, the 36-hour rule will still apply in that scenario.
In practice, probable cause for continued detention is often found within 48 hours of arrest (also known a PC hold). In that event, the 36-hour rule will then take over. In serious felony cases, prosecutors may request a time extension for cause if they are unable to get charges filed within the applicable time period. Sometimes within 36 or 48 hours of arrest, bail is set either by a judge, the jail, or with help from the defendant’s lawyer.