Art. 309. If the defendant is freed, he must be set free, after the record of arrest in flagrante delicto has been drawn up.
When the accused is released: The accused is always released in flagrante delicto of a crime for which there is no provision for deprivation of liberty. Incidentally, the record will not be drawn up if the maximum penalty is up to two years ( article 69, sole paragraph, of Law n. 9.099/95). This is because, according to the Law of Special Courts, criminal offenses of lesser offensive potential are considered to be criminal misdemeanors and crimes to which the law imposes a maximum penalty of not more than two years, combined or not with a fine, and the police authority that takes knowledge of the occurrence will draw up a detailed term and forward it immediately to the Court. The author of the act who, after drawing up the term, is immediately sent to the Court or assumes the commitment to appear there, arrest in flagrante delicto will not be imposed, nor will bail be required.