Bail Hearing | Pre-trial Release

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At a Bail Hearing, also called Pretrial Release Hearing, a judge will consider pretrial release of a person held in custody or sometimes for a person appearing on a Summons. 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 have a lawyer to represent him at the bail hearing.

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).

What is a Bail Hearing in Minnesota?

The main issue at a bail hearing 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, so 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. But 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: pretrial release evaluation

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

Pretrial release conditions: bail hearing

At the Bail Hearing, the judge may order:

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

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 an alternative Conditional Bail.

Normally the amount of money a judge requires for Unconditional Bail is higher. This creates a financial 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 this by its acronym “DANCO.”

Two layers of NCOs: The DANCO law is different from, and additional to, “conditions of pre-trial release.” So, a person charged with a domestic crime could potentially post the higher “unconditional bail” amount with the court; but 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, onerous conditions of pretrial release. Many attorneys and others view Minnesota’s DANCO statute to be an unconstitutional subterfuge.

But, in most Minnesota domestic crime cases, the judge will order both a no-contact condition-of-pretrial-release, and a DANCO.

Different legal remedies: The only legal remedy for a violation of a “condition of pretrial release” is an arrest or arrest warrant.

But 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. So, the prosecutor can charge a new criminal offense with a new offense date for “Violation of a DANCO” (in addition to a new arrest). See:

How to Drop a Domestic Abuse No Contact Order in Minnesota.

Maximum bail: non-felony

For Minnesota non-felony crimes (Misdemeanors and Gross Misdemeanors), the maximum bail is double, quadruple, six times, or ten times the maximum fine for that offense. Minnesota Statutes § 629.471.

For example, since the maximum fine for a Gross Misdemeanor DWI is $3,000, the maximum bail is $12,000.

The defendant who posts the maximum bail for a Gross Misdemeanor DWI, must be released without other pretrial release conditions. For domestic violence crimes, however, posting the note the previous paragraph discussing DANCOs.

In a felony case, Minnesota has no maximum dollar limit on bail. But the law provides other limitations on bail and pretrial detention on felony claims.

No Pre-trial Conditions of Release

Why post maximum bail in a non-felony case, or unconditional, money only bail in a 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.

“The court must set money bail without other conditions on which the defendant may be released by posting cash or sureties.”

Minn. R. Crim. P. 6.02, subd. 1 (in relevant part)

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. So, heads up. It could be too late to try to get it later, after posting the cheaper, conditional bail.

“All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.”

Minn. Const. art. I, § 7 (in relevant part)

As the Minnesota Supreme Court observed:

“The Minnesota Constitution provides that ‘[a]ll persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.’ Minn. Const. art. I, § 7. Because capital offenses no longer exist in Minnesota, bail is an absolute right in all cases. State v. Pett, 92 N.W.2d 205, 207-08 (Minn. 1958). The general purpose of bail is to permit a defendant’s release pending trial if his appearance at trial can be otherwise guaranteed. … Bail is meant to ‘limit government power to detain the accused prior to trial.'”

State v. LeDoux, 770 NW 2d 504 (Minn. Supreme Court 2009)

And the Minnesota Court of Appeals said:

“The supreme court recently addressed the constitutionality of imposing pretrial conditions of release as permitted by the Minnesota Rules of Criminal Procedure. State v. Martin, 743 N.W.2d 261 (Minn. 2008). In Martin, the supreme court addressed whether Minn. R. Crim. P. 6.02, subd. 1, was unconstitutional because it allows a district court to impose conditions of release ‘for purposes other than to assure the defendant’s appearance at future court proceedings.’ Id. at 265. The supreme court held that the rule as a whole did not violate the constitution because of the clause in the rule that states that ‘[i]n any event, the court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release either by posting cash or by sufficient sureties.’ Id. (quoting Minn. R. Crim. P. 6.02, subd. 1). The supreme court stated, ‘Thus, the rule assures that defendants will be given the alternate choice of the right to bail by sufficient sureties if release on nonmonetary conditions is ordered. . . . [C]onditioned release under the rule may be offered only as an alternative to money bail without conditions.’ Id.”

State v. Ciesinski, nonprec. A09-2106 (Minn Court of Appeals 2010)

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 by the court. 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. (People in custody for alleged violations of a condition of probation, may be held longer, before getting a hearing before a judge.)

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” or a bail bond 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 first 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.

Why Buy a Bail Bond vs. Post Cash Bail?

If the Defendant posts (deposits) cash bail with the court, and makes all court appearances through dismissal or sentencing, the court will then refund all the bail money deposited with the court (less any fines and court fees).

On the other hand, if someone buys a bail bond they will typically pay a bond fee of ten percent of the face value of the bail bond. Later assuming the Defendant makes all court appearances through dismissal or sentencing, the court will then release the bond, but the bonding company will not refund the bond fee paid. (Compare to car insurance, where you don’t get a premium refund after a year of no accident claims.)

Also, note that when someone other than the Defendant posts cash bail with the court, when the court later refunds the cash bail at the end of the case, the court will send it to the Defendant (not to the person who deposited the funds with the court).

So why buy a bail bond for ten percent of the bail amount and not get it back, rather than pay the full bail amount and later get it all refunded to the Defendant? One reason is affordability. While many may be able to come up with a $3,000 cash bail, few will be able to post $100,000 cash. So for larger bail amounts especially, having a bail bond option can make it possible to get out and keep that job and family intact.

Question? Call Lawyer Thomas Gallagher, 612 333-1500

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