A Common Scenario:
It’s a Friday night and you get a call from your spouse or a loved one. They have been arrested for a DWI and they are being held in jail. They have been told that they may not see a judge until Monday. Is there any way to mandatory bail set and get them out?
Background:
Minnesota Statute § 169A.44 states that maximum bail must be set and the offenders must be held in jail for a First Appearance for those individuals listed in Minnesota Statute § 169A.40, subd 3,. The statute is the Minnesota Mandatory Bail Statute and it states:
Minnesota Statute §169A.40 Subd. 3.Certain DWI Offenders:
Notwithstanding rule 6.01 of the Rules of Criminal Procedure, a peace officer acting without a warrant who has decided to proceed with the prosecution of a person for violating section 169A.20 (driving while impaired), shall arrest and take the person into custody, and the person must be detained until the person’s first court appearance, if the officer has reason to believe that the violation occurred:
(1) under the circumstances described in section 169A.24 (first-degree driving while impaired) or 169A.25 (second-degree driving while impaired);
(2) under the circumstances described in section 169A.26 (third-degree driving while impaired) if the person is under the age of 19;
(3) in the presence of an aggravating factor described in section 169A.03, subdivision 3, clause (2) or (3); or
(4) while the person’s driver’s license or driving privileges have been canceled under section 171.04, subdivision 1, clause (10) (persons not eligible for drivers’ licenses, inimical to public safety).
What this means is:
1. Anyone arrested for a Felony DWI will be held in jail until he or she appears in front of a judge.
2. Anyone charged with a Second Degree DWI (i.e. 3 dwi’s in 10 years; refusal with a prior within 10 years; etc) must post maximum bail;
3. Anyone with a prior DWI and they are under the age of 19 at the time of the current arrest must post maximum bail;
4. Anyone arrested for DWI and they tested at .16 or more at the police station must post maximum bail;
5. Anyone arrested for DWI having a passenger under the age of 16 and the driver is more than 36 months older than the passenger, must post maximum bail.
6. Anyone arrested for DWI and their license has been previously revoked as inimical to public safety must post maximum bail.
Minnesota Statute 169A.44 sets maximum bail for a non-felony DWI at $12,000.00.
People often think they can post the $12,000, either by posting cash or hiring a bail bondsman, and their loved one will be immediately released. If only it were that simple.
Minnesota Rule of Criminal Procedure, 4.02, subd. 5 states:
(1) Before Whom and When. An arrested person who is not released must be brought before the nearest available judge of the county where the alleged offense occurred. The defendant must be brought before a judge without unnecessary delay, and not more than 36 hours after the arrest, exclusive of the day of arrest, Sundays, and legal holidays, or as soon as a judge is available. In misdemeanor cases, a defendant who is not brought before a judge within the 36-hour limit must be released upon citation, as provided in Rule 6.01, subd. 1.
County of Riverside v. McLaughlin, 111 S.Ct. 1661 (1991) further requires that if the person was arrested without a warrant, they may not be detained for more than 48 hours after the time of the arrest unless a complaint has been filed or a judge has made a probable cause determination for continued detention.
The Counties all have on-call judges to make this probable cause determination. And some are also willing to set maximum bail immediately. So it is possible to get someone out over the weekend. But it certainly depends upon the county and the on-call judge that you are dealing with.
Contact Minneapolis DWI Lawyer F. T. Sessoms:
For answers to all of your Minnesota DWI and DUI questions, please call Minneapolis DWI Lawyer F. T. Sessoms at (612) 344-1505 today.
