Contesting a Montana Fugitive Warrant Held on an Old DUI in California

Attorney Answer

The window to get him released is now, before Montana's governor's warrant arrives. Once that warrant is executed, California law flatly denies bail except on four narrow findings — so plan around the calendar, not around the merits of the 2019 DUI.

Cal. Penal Code § 1552 allows a person arrested as a fugitive to be committed for up to thirty days to permit an arrest under the governor's warrant, with bail available under § 1552.1, and one further recommitment of up to sixty days under § 1552.2. That pre-warrant period is where release is genuinely possible.

After the governor's warrant is executed, Cal. Penal Code § 1550.1 requires that he be taken forthwith before a magistrate who must inform him of the demand, the crime charged and his right to counsel, and permits him to test the legality of the arrest by habeas corpus. But the warrant is presumed valid, and the statute says he shall be held in custody at all times and shall not be eligible for release on bail unless the court finds that he is not the person named, that he is not a fugitive or otherwise subject to extradition, that no criminal charge or proceeding is pending in the demanding state, or that the documents are not on their face in order.

On your actual question — verifying that the charges match — Cal. Penal Code § 1548.2 tells you what to compare against. Montana's papers must include an indictment, information, or affidavit made before a magistrate together with any warrant issued on it (or a judgment and sentence with a statement of escape or violation), certified as authentic, and they must substantially charge the person demanded with a crime under Montana law. That document set is the thing to obtain and check line by line.

Understand how narrow the review is. In re Walton, 99 Cal. App. 4th 934, 122 Cal. Rptr. 2d 87 (2002), holds that a California court considering habeas relief from a rendition order is confined to four questions: whether the extradition documents are facially in order, whether he is charged with a crime in the demanding state, whether he is the person named in the request, and whether he is a fugitive. Everything else — including constitutional complaints about what may happen to him — must be raised in Montana's courts. Walton's own petition was denied.

And be realistic about bail. In People v. Superior Court (Ruiz), 187 Cal. App. 3d 686, 234 Cal. Rptr. 214 (1986), the court held a trial judge exceeded his jurisdiction by releasing a governor's-warrant arrestee on bail or her own recognizance based on his own view that the statute was unconstitutional, or on considerations like likelihood of appearance or jail crowding. The appellate court vacated the release order and remanded her to custody. That is the answer to "can't the judge just let him out."

What you can do

1. Make sure counsel is appointed at the fugitive arraignment, immediately. This is not something to handle from the outside. 2. Ask for bail under § 1552.1 now, in the pre-governor's-warrant window. That request gets much harder after the warrant executes. 3. Get the California court file and the demand papers required by § 1548.2, and compare the name, date of birth, case number and charge to the Montana court's own record. 4. If the identity is genuinely wrong, say so through counsel at once — whether he is the person named is one of the four issues Walton says a California court can reach. 5. Retain or consult a Montana lawyer in parallel. Every argument about the age or seriousness of the 2019 DUI belongs in Montana, and resolving the case there is often the fastest route out.

⏱ Time limits apply. Under Cal. Penal Code § 1552 he may be committed for up to thirty days awaiting the governor's warrant, with one further recommitment of up to sixty days under § 1552.2. The bail opportunity under § 1552.1 closes when the governor's warrant is executed and § 1550.1 takes over. Where he sits in that sequence depends on his arrest date and what Montana has already filed, so confirm it with the court clerk today.