Get Me OUT! Your Options When Being Detained After a DWI Arrest.

Many times the consequences for being arrested for DWI start before you even appear in court. A weekend arrest can mean that you sit in a jail cell – unable to post bail – until Monday morning. An arrest during the work week can mean spending two or more days in jail before you even appear in front of a judge. And regardless of your alcohol concentration, an arrest can sometimes lead to being held in a secured detox facility for at least 72 hours.

This is a major problem for people who have jobs to get to, kids at home, or value their freedom. Being held in custody, for days, without even appearing in front of a judge is a degrading and demeaning experience. Luckily, there are ways to avoid the long wait, and get back to your life.

When you or a loved one is being held in detox, we can file a writ to have them immediately released . . . even on a weekend. If someone is being held in jail pending a hearing, we can contact a judge and, in most cases, either get them released outright, or at least get bail set so that they can go home.

Sitting in jail for three days just because you were arrested for (not convicted of) DWI is an avoidable situation, as long as you know what to do and how to properly do it.

Tags: ,

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.

Continue Reading...

Part 2- Adding Insult to Injury: Why Minnesota's DWI Bail Statute is Unconstitutional.

 As we blogged about in part one of this three-part series on bail arguments, most Minnesota judges think that they are required by law to set bail in DWI cases. It turns out that the majority of people arrested for DWI are supposedly required to pay the State thousands of dollars for the privilege of being allowed to go home, go back to work, see their families, and try to bring some semblance of normalcy to their lives.

Generally, bail serves an important purpose.  It ensures that criminal defendants who may be likely to flee prosecution have an incentive to show up for court. However, determining who is and is not likely to flee is a very fact specific inquiry, and can differ from person to person. Whether a specific person is a risk to “public safety” is another reason to require bail - another factor that depends on the character and background of each individual.

One purpose bail can not serve is to “punish” someone before trial. Bail only exists to ensure that defendant’s appear in court, while allowing them to continue to lead their lives until their court case is resolved. This is why every Minnesotan has a constitutional right under Article 1, Section 7 to post bail, and cannot be held “without bail.”

This is one of two reasons why Minnesota’s DWI Bail Statute is unconstitutional.  It assumes that every person arrested for DWI is a flight risk, and automatically requires bail for all but some types of first time offenders. For example, if you are arrested for DWI and have one prior offense within the past ten years, an alcohol concentration above a .20, or someone in your vehicle under the age of 16, the law states that you must post $12,000 bail in order to be released without other conditions.  It is absurd to assume that anyone who fits into these categories is automatically a flight risk, and then arbitrarily stating that $12,000 will eliminate the risk of flight.

The other reason why this statute is unconstitutional is that the legislature simply doesn’t have the authority to pass this type of law - our Constitution is one that is based upon the separation of powers.  Bail is an area that is constitutionally delegated to the judicial branch; thus, regulation of bail can be done through the judicially-approved Rules of Criminal Procedure, but not through legislatively passed statutes.  The Rules of Criminal Procedure make it clear that a judge should presume each defendant can be trusted to appear, and does not need bail assigned. The legislature simply does not have the power under our Constitution to pass a law that overrides that presumption and replaces it with the command that every defendant post bail.

Unless there is a strategic reason not to, we raise these arguments at every bail hearing. That bail hearing is often our first chance to “go to bat” for our clients, and is our only opportunity to convince the court not to punish our client with excessive and unnecessary bail while they are still presumed innocent.

Up next in our three part bail series: Why Minnesota’s DWI bail statute simply doesn’t apply in most cases - regardless of whether it is actually constitutional or not. 

Part 1 - Adding Insult to Injury: Should You Post Bail When You’re Charged with a DWI?

Part 3 - Adding Insult to Injury: Why Minnesota’s DWI Bail Statute Doesn’t Apply to Your Case.

Part 1 - Adding Insult to Injury: Should You Post Bail When You're Charged with a DWI?

One problem that most people arrested for DWI will quickly encounter is that Minnesota judges think that they are required to set bail in DWI cases. This means that before you are found guilty - sometimes before you even appear in court - the State will require to you pay them for the privilege of being allowed to go home, go back to work, see your family, etc. So much for “innocent until proven guilty!”

Bail in a DWI case can range up to $12,000 (and can reach $100,000 or more in felony DWI cases). This can be an incredible financial burden for the average citizen, which is why you have the option to pay a bail bondsman. A good bail bondsman will charge you about 10% of the bail amount (e.g. if your bail was set at $6,000, you would pay about $600), and allow you to be on your way - as long as you promise to make all future court appearances.

If you don’t think you can afford bail, there is a second option that is often made available that appears like a good idea, but is actually far inferior to posting bail. Many judges will set bail, and as an alternative order that you go on “pre-trial monitoring.” This typically means that you are locked into an ankle-bracelet to ensure that you don’t use alcohol for the duration of your criminal case. What isn’t made clear to you is that you have to pay for the “privilege” of having this ankle bracelet - typically $10 - $15 per day. Thus, after 60 days, you’ll have paid at least $600; if your case takes longer than four months (very typical) you will have already “paid” the maximum bail amount of $1,200 . . . and you’ll still be wearing that ankle bracelet. And be careful - if the ankle bracelet even thinks you’ve consumed alcohol, it’ll report you, and you’ll end up facing an arrest warrant in the near future.

Whenever it is financially possible, we advise all of our clients to post bail rather than shackle themselves to an ankle bracelet. Posting bail is almost always cheaper in the long run, and you don’t have to worry about false positive readings or other errors that can put you back in jail.

Of course, being a good attorney doesn’t just mean giving advice, it means knowing how to fight for our clients rights. It’s always better to convince a judge not to order any bail at all, rather than have to decide between the lesser of two evils. Our next post will discuss some of the arguments we’ve successfully used in court to make sure that our clients were not saddled with expensive pre-trial bail amounts - the fact that Minnesota’s bail statute is unconstitutional, and the added fact that judges incorrectly apply the statute in a vast majority of cases where it doesn’t even apply.

Part 2 - Adding Insult to Injury: Why Minnesota’s DWI Bail Statute is Unconstitutional.

Part 3 - Adding Insult to Injury: Why Minnesota’s DWI Bail Statute Doesn’t Apply to Your Case