Recently, we discussed Kanye’s request to have Rihanna pay his bail and the impact jurisdiction plays in determining whether bail will be set in Part I. In this installment, we explain the second biggest factor in determining whether bail is set in a case: the type and level of offense.
Type & Level of Offense
Misdemeanor level offenses, such as 4th Degree DWI, Disorderly Conduct, and Driving after Revocation, do not trigger bail in most jurisdictions. Most officers will cite someone for a Misdemeanor offense and let them go. In a 4th Degree DWI arrest (typically first-time offenses with an alcohol concentration under .16), most police officers will release the person within a few hours, so long as they have submitted to an evidentiary test and a sober party is willing to pick them up. Some jurisdictions, however, will impose bail on misdemeanors. It is usually a nominal amount equal to the amount of the fine or surcharge for the offense.
Most Gross Misdemeanor offenses will trigger bail, conditions of release, or both. Examples of Gross Misdemeanors are 2nd and 3rd Degree DWI, Driving after Cancellation – Inimical to Public Safety, and Thefts of property or services worth between $501 and $1,000. By law, some Gross Misdemeanor DWIs trigger mandatory bail or conditions of release. In the case of 3rd Degree DWIs (having an alcohol concentration of .16 or more) and 2nd Degree DWIs, maximum bail of $12,000 is required or else the defendant must abstain from alcohol and be subject to an alcohol monitoring device (Minn. Stat. 169A.44, subd. 1). Other Gross Misdemeanor offenses will also often require abstention from alcohol and non-prescribed drugs if the allegations involve evidence of impairment.
Additionally, crimes involving violence, such as Domestic Assault, regardless of the level, will require strict conditions of release and, almost automatically, a no-contact order between the defendant and the alleged victim.
Felony offenses are often the most unpredictable for bail and conditions of release. Sometimes, law enforcement is investigating someone for a crime, such as financial transaction fraud or criminal sexual conduct, and they will not arrest the individual at all. Instead, they will forward the case to a prosecutor who will issue a summons to appear in court along with a complaint detailing the charges.
In some Felony cases, and some Gross Misdemeanor cases, a prosecutor will issue a complaint warrant. A complaint warrant details the charges against someone but also includes an amount of bail that must be posted. Most good defense attorneys will try and avoid this situation by calling the prosecutor ahead of time and ask them not to issue the complaint this way, if they were retained before charges were filed.
Felonies often involve the most obscene amounts of bail. In many violent felony cases, the bail will be set so high that it is almost impossible for someone to post it. After all, the primary purpose of bail is to secure someone’s appearance in court. Judges will often impose an unconditional bail amount and a lesser bail amount with conditions. This mix of unconditional and conditional bail is not uncommon in Gross Misdemeanor cases either. In Minnesota, a defendant has a constitutional right to unconditional bail in a criminal proceeding (State v. Pett). A point that must be raised, if the prosecutor and court want to impose conditions on someone without an unconditional alternative.
Last, but not least, the final part of this blog series will explain bond procedures and the 36/48 hour rules in Minnesota.
Robert H. Ambrose is a criminal justice lawyer in Minneapolis, Minnesota. He has argued more bail hearings than he can remember. If you, or someone you know, is charged with a crime anywhere in the state of Minnesota, then please contact us for a free consultation.
 Domestic Abuse, Stalking, and Harassment crimes have very detailed rules regarding bail and conditions for release. Enough to fill another blog. For more information on issues of release for these crimes, please refer to Minn. Stat. 629.72.