Bail Hearing

Bail Hearing (Pre-Trial Release Hearing)

If a person is arrested and held in jail on a law enforcement Probable Cause Hold, they must be released without bail unless formally charged by a prosecutor within a limited period of time (typically days).  If charged in time, the defendant will be brought before a judge for a Bail Hearing, also called a Pre-Trial Release Hearing.

The defendant has the right to be represented by a lawyer at the bail hearing.

Minnesota Supreme Court Justice Thomas F. Gallagher

The main issue at the Pre-Trial Release Hearing is whether there should be any conditions of pre-trial release, and if so, what should they be.  In Minnesota, we have a constitutional  right to pretrial release.  This right may be overcome by conditions of release beyond the reach of the defendant.  When that happens, the defendant may be held in jail until the trial is completed or longer.  Almost all defendants would like to be on pre-trial release rather than in jail waiting trial.  Attorney Gallagher prefers that his clients be out of jail, so that they can have a meaningful opportunity to participate in their defense and trial preparation.


The key concern of the judge at a Pre-Trial Release hearing is whether the defendant will show up for future court appearances.  In a smaller percentage of cases, the prosecutor may raise “public safety” as a concern.

Typically the court’s Probation Office (or Court Services) will conduct a pre-trial release interview of the defendant, sometimes completing a worksheet with a formula and a number score, relating to issues of perceived likelihood of making future court appearances and public safety.  These may include recommendations for conditions.

The judge may order the defendant released without any conditions.  The judge may order money Bail as a condition.  The judge may order non-money conditions of release (e.g., no use of alcohol, stay away from address).

In Minnesota we have a right to bail without non-monetary conditions, “money only Bail.”  Judges will often order both Unconditional Bail as well a Conditional Bail.  Normally the amount of money required is higher for Unconditional Bail, presumably to create an incentive for the defendant to accept the conditions of Unconditional Bail.

In alleged domestic violence cases in Minnesota, note that the judge may issue a “Domestic Abuse No Contact Order” often referred to by its acronym “DANCO.”  The DANCO law was apparently designed to avoid being considered a “condition of pre-trial release.”  As a result, a person charged with a domestic crime could post the higher “unconditional bail” amount with the court, yet still be subject to the DANCO’s no-contact order.  Violation of a DANCO technically would not itself be a violation of a condition of pre-trial release, but would by a new, additional crime the prosecutor could charge, result in a new arrest and detention, and so on.

In Minnesota for non-felony crimes (Misdemeanors and Gross Misdemeanors), the maximum bail is four times the maximum fine for that offense.  Since the maximum fine for a Gross Misdemeanor is $3,000, the maximum bail is $12,000.  Since we have the right to money-only bail in Minnesota, the maximum $12,000 bail for a Gross Misdemeanor must be without other conditions.  (For domestic violence crimes, however, note the previous paragraph discussing DANCOs.)

Bail can be posted with the court in one of two ways: cash or bond.  If someone deposits cash bail with the court, it should be returned at the point where the court loses jurisdiction over the defendant due to dismissal or acquittal, or at the time of sentencing.  If the court orders payment of money for fines, restitution or other purposes, this may be deducted from cash bail on deposit with the court, and the difference would then be refunded to the defendant (not the person who deposited it with the court).

Bail bonds are a convenient solution for many.  A bail bond agent for a bail bond company can help by writing a bail bond and filing it with the court on behalf of a defendant.  A bail bond is a promise to pay the court the full bail amount in the event the defendant fails to make all court appearances dismissal or sentencing.  Though relatively unusual, when that happens if the bail bond company can apprehend the fugitive (bounty hunter), they can get their money back.  Bail bond companies normally want credit information and collateral as well as a signed contract from the responsible party buying the bail bond on behalf of the defendant.

If you have a question about or need representation for a bail hearing, call Minneapolis Criminal Lawyer Thomas C. Gallagher at 612-333-1500.