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Minnesota Court Process Guide » Bail Hearing | Pre-trial Release Hearing

Bail Hearing | Pre-trial Release Hearing

At a Bail Hearing, also called Pretrial Release Hearing, a judge will consider pretrial release of a person held in custody.  The judge can order pretrial release with or without conditions.  The conditions can include money bail and other conditions.  The defendant has the right to a lawyer to represent him at the bail hearing.

What is a Bail Hearing in Minnesota?

A police officer may arrest a person and book them into jail on a Probable Cause Hold. If so, unless a prosecutor formally charges by within the time limit (days) they must be released without bail.

If the prosecutor charges in time, the defendant will appear before a judge for a Pretrial Release Hearing (Bail Hearing).

The main issue is whether the judge should order conditions of pretrial release; and if so, what should they be.

In Minnesota, we have a constitutional right to pretrial release, which the Minnesota Constitution articulates.

The judge may set conditions of release beyond the defendant’s reach, however. And when that happens, the court may hold the defendant in jail until the trial is completed.

Defendants prefer to be out on pretrial release rather than in jail waiting trial.  And Attorney Thomas Gallagher wants his clients out of jail.  That way, they can participate in their defense and trial preparation.  And families and society benefit when people facing accusations, maintain employment.

The judge’s key concern at a Bail Hearing is whether the defendant will make future court appearances.  In a smaller percentage of cases, the prosecutor may raise concern about “public safety.”

Rule 4 of the Minnesota Court Rules of Criminal Procedure controls Bail Hearings.

Before bail hearing: Probation Officer’s pretrial release evaluation

Before the bail hearing, typically the court’s Probation Office (Court Services) will conduct a pretrial release interview of the defendant. This includes completing a worksheet with a formula and a number score.

Thomas Gallagher, Minneapolis Criminal Defense Attorney 400. pretrial release
Attorney Thomas Gallagher: Pretrial Release, Bail Hearing

The questionnaire scores factors relating to likelihood of making future court appearances and public safety. The Probation Officer’s report may include recommendations for conditions.

Pretrial release conditions – bail hearing

At the Bail Hearing, the judge may order:

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

Right to money-only, unconditional bail

We have the right to bail without conditions other than money.  Money-only Bail (“unconditional bail”) is our right under the Minnesota Constitution.  At the Bail Hearing, Judges order two bail amounts.  The judge should order both Unconditional Bail as well a Conditional Bail.

Normally the amount of money a judge requires for Unconditional Bail is higher.  This creates an incentive for the defendant to accept the conditions of Conditional Bail.

Except domestic charges – bail hearing

In Minnesota domestic violence cases; the judge may issue a “Domestic Abuse No Contact Order.” We often refer to its acronym “DANCO.”

The DANCO law is different from “conditions of pre-trial release.”

So, a person charged with a domestic crime could post the higher “unconditional bail” amount with the court; and yet still be subject to the DANCO’s no-contact order. And this makes posting maximum bail in a non-felony domestic case less attractive. Yet, the defendant may do so to avoid other conditions of pretrial release.

Many attorneys and others view the DANCO statute to be an unconstitutional subterfuge.

But, in most domestic crime cases, the judge will order both a no-contact condition-of-pretrial-release, and a DANCO.  And the only remedy for a violation of a condition of pretrial release is an arrest or arrest warrant.

In contrast, violation of a DANCO technically would not itself be a violation of a condition of pretrial release.  Instead, it would be a new, additional crime the prosecutor could charge (in addition to a new arrest).

For more, see our article: How to Get Rid of a Domestic Abuse No Contact Order in Minnesota.

Liberty and Justice for all. pretrial release
Liberty and Justice for all

Maximum bail in non-felony cases

For Minnesota 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. The defendant who posts the maximum $12,000 bail for a Gross Misdemeanor, must be released without other pretrial release conditions. (For domestic violence crimes, however, note the previous paragraph discussing DANCOs.)

No Pre-trial Conditions of Release

Why post maximum bail in a non-felony case? Some conditions can put employment at risk. For example, dropping off a weekly urine sample can mean missing a half-day of work, weekly. Others travel for work.

Timing: The defendant should make that choice at the Bail Hearing, not later. And you should make the choice within hours of the bail hearing. It could be too late to try to get it later, after posting the cheaper, conditional bail.

When to post bail: two types of arrest warrants

Traditionally, arrest warrants were “body only.”

But today courts can set a bail amount on an arrest warrant when issued. 

So, a warrant may have pre-set bail. If so, the defendant can post bail to get an Arraignment court date; without sitting in jail to wait for a Bail Hearing.

Otherwise, you can post bail after the Bail Hearing. So a person held on a “probable cause hold” after an arrest, or on a “body-only warrant;” waits for the bail hearing.

How to post bail

You can be post bail with the court in one of two ways: cash or bond.

After you post cash bail with the Court Administrator, the jail will release the defendant.

If someone deposits cash bail, the court returns it after the dismissal of charges, or sentencing, to the defendant.

But the court may deduct any fines or restitution from cash bail on deposit with the court.  The court then refunds the difference to the defendant (not the person who deposited it with the court).

Bonding out

Bail bonds are a convenient solution for many. Bail bond agents often attend the Bail Hearing calendar in courts around Minnesota. Or you can contact one before the Bail Hearing to make arrangements.

A bail bond agent can help by writing a bail bond and filing it with the court for a defendant.  After the bonding company posts the bail bond with the Court Administrator, the jail will release the defendant.

If the defendant fails to make all court appearances, the bonding company must pay the court the full bail amount.  Though unusual, when that happens the bail bond company can get their money back if they apprehend the fugitive.  They employ bounty hunters (bail enforcement agents or fugitive recovery agents), for this.

Bail bond companies require a credit application, contract and asset collateral from the responsible parties buying the bail bond.  Bail bond companies view the defendant as a better risk if they know the defendant’s criminal lawyer.

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

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