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.