Part 3- Adding Insult to Injury: Bypassing Minnesota's DWI Bail Statute.
In this final chapter in our three part series regarding bail, we're going to debunk the common myth that Minnesota judges are required by law to set bail in DWI cases. We've already explained what you need to consider when you're ordered to post bail, and analyzed why Minnesota's bail statute is largely unconstitutional.
Unfortunately, few judges are willing to put their own necks on the line and completely ignore Minnesota's DWI bail laws. However, many judges will listen to (and agree with) the argument that the bail statute itself does not even apply to many DWI defendants. I've used this argument many times in a situation where the court was going to charge my client $12,000 bail, and instead chose to release him or her without requiring any bail.
The DWI maximum bail statute defines when maximum bail is required. It supposedly requires maximum bail ($12,000) in all cases where a defendant is charged with second degree DWI (a DWI with two aggravating factors), whenever a test result reports an alcohol concentration at or above .20, or whenever someone under the age of 16 is in the vehicle. Other situations are also covered, such as when someone under the age of 19 is charged with third degree DWI, or when someone was caught driving with a canceled driver's license.
The statute supposedly "requires| that anyone charged with a DWI under these situations be arrested immediately, and held until their first court appearance. This is the key - the requirement that these offenders be both arrested and held in custody. Put another way, if the officer does not have an offender held in custody until their first court appearance, the maximum bail statute, by its own terms, does not apply.
This situation comes into play all the time, especially in blood or urine test cases. These tests typically take at least a month to complete, so there is rarely a basis to hold someone in custody until their first court appearance. What happens instead is that the person is notified, a month or more after their arrest, that their test result came back above the legal limit. Then, overzealous prosecutors issue an arrest warrant, and expect people to post $12,000 bail long after they had already been released from custody!
It sounds absurd, but it happens, it happens regularly, and it happens in situations where defense attorneys should know better. Time and time again potential clients call our office, upset that they were forced to post thousands of dollars in bail after they had already been released from custody. It's frustrating, because if we had been involved earlier, we likely could have prevented any bail from being ordered at all. All it takes is a careful argument to the judge, explaining why the maximum bail statute doesn't cover situations where someone has already been released from custody!
If you've been arrested for DWI, and are awaiting the results of a blood or urine test, you need an attorney before, not after, the test results come back. Waiting will often be an expensive mistake - and a mistake that, with a little legal experience, can be completely avoided.