Louisiana Code of Criminal Procedure Article 230.2 sets one of the most important deadlines in the early life of a criminal case: the 48-hour rule. When you are arrested without a warrant, a magistrate must determine that probable cause supported the arrest within forty-eight hours, or you are entitled to release. This article puts the Supreme Court’s decision in County of Riverside v. McLaughlin into Louisiana practice and guards against people being held on an officer’s say-so alone.
What the Statute Says
Art. 230.2. Probable cause determinations; persons arrested without a warrant and continued in custody; bail
A. A law enforcement officer effecting the arrest of a person without a warrant shall promptly complete an affidavit of probable cause supporting the arrest of the person and submit it to a magistrate. Persons continued or remaining in custody pursuant to an arrest made without a warrant shall be entitled to a determination of probable cause within forty-eight hours of arrest. The probable cause determination shall be made by a magistrate and shall not be an adversary proceeding. The determination may be made without the presence of the defendant and may be made upon affidavits or other written evidence, which may be transmitted to the magistrate by means of facsimile transmission or other electronic means. A magistrate’s determination of probable cause hereunder shall not act as a waiver of a person’s right to a preliminary examination pursuant to Article 292.
B.(1) If a probable cause determination is not timely made in accordance with the provisions of Paragraph A of this Article, the arrested person shall be released on his own recognizance.
(2) Nothing in this Paragraph shall preclude the defendant’s rearrest and resetting of bond for the same offense or offenses upon the issuance of an arrest warrant based upon a finding of probable cause by a magistrate.
La. Code Crim. Proc. — source: Louisiana State Legislature
Why Article 230.2 Matters to Your Defense
Article 230.2 matters because it forces a neutral magistrate — not the arresting officer — to review whether there was probable cause to hold you. The probable cause determination must happen within 48 hours of a warrantless arrest. The State cannot detain someone indefinitely while it builds a case; the clock is a real, enforceable limit on government power.
Crucially, Paragraph B provides a remedy with teeth: if the determination is not made within 48 hours, the arrested person shall be released on his own recognizance. That is not discretionary. For someone sitting in jail unable to post bond, enforcing this deadline can mean the difference between waiting behind bars and going home to prepare a defense.
How Our Attorneys Use Article 230.2
We track the arrest time and the timing of the probable cause determination from the moment we are retained. If the 48-hour window has passed without a valid determination, we move immediately for release on recognizance under Article 230.2. Early release lets clients keep their jobs, support their families, and participate fully in their own defense.
We also use the probable cause affidavit itself as a discovery tool, scrutinizing whether the stated facts actually establish probable cause. A thin or boilerplate affidavit can signal weaknesses we exploit later. Note that a probable cause determination under this article does not waive your right to a preliminary examination — see our criminal procedure overview for how these stages connect.
Frequently Asked Questions
Under Article 230.2, when you are arrested without a warrant, a magistrate must determine that probable cause existed within forty-eight hours of the arrest. If that determination is not timely made, you are entitled to release on your own recognizance.
No. Article 230.2 applies to warrantless arrests. When an arrest is made on a warrant, a judge has already found probable cause before the warrant issued, so the 48-hour determination requirement does not apply in the same way.
It means you are released without having to post a cash or commercial bond, based on your written promise to appear in court. Under Paragraph B, this release is the mandatory remedy when the 48-hour deadline is missed.
Yes. Paragraph B(2) allows the State to re-arrest you and reset bond for the same offense if a magistrate later issues an arrest warrant based on a finding of probable cause. Release for a missed deadline is not a dismissal of the charges.
Charged in Louisiana? Talk to a Defense Attorney
If you or a loved one is being held after a warrantless arrest, the 48-hour rule may entitle you to release right now. The Ambeau Law Firm acts quickly to enforce Article 230.2. Contact us or call (225) 330-7009 for a free, confidential consultation.