Written by attorney Max A. Keller

How Does Minnesota Set DWI Bail?

Unlike in federal criminal court, in Minnesota state court any person charged with a crime has a right to bail. A person cannot be held without bail on a new criminal charge; holding someonewithout bailcan only occur after an individual is convicted. People who are alleged to have violated their probation can be held without bail, as can people who have (1) pled guilty or been found guilty by a jury and (2) are awaiting sentencing.

On DWI charges, bail will typically be set at the person’s first appearance. An exception occurs when someone is arrested on the weekend, hires an attorney, and the attorney convinces a Judge to set bail over the phone. “Weekend bail" is only available in certain counties. And even with weekend bail, the same maximum amounts and mandatory conditions apply. Bail for a Minnesota DWI is dependent on the level of the charge and the nature of the offense. The nature of the offense is dependent on what Minnesota calls an “aggravating factor." An “aggravating factor" is one of the following:

  • 1. A prior conviction OR license revocation under implied consent laws within the past 10 years.

  • 2. A child under the age of 16 in the vehicle when the offense occurs, if the child is more than 36 months younger than the offender.

  • 3. A chemical test (breath, blood, or urine) with a result of .20 or more.

  • 4. Refusing to submit to a test.

Bail for Minnesota DWIs is then set as follows:

  • 4th Degree DWI:

4th Degree DWI is a misdemeanor. 4th degree DWI occurs when the offender is charged with a DWI and zero (0) aggravating factors are present. The maximum amount of bail that may be set for a 4th degree DWI is $4,000. There are no mandatory conditions associated with an offender’s release on his own recognizance. Most counties in the metro area will release an individual charged with 4th Degree DWI without bail and without any monitoring. Some outstate counties will require monetary bail, usually in the amount of $1,000, to obtain release without conditions. The outstate counties will allow a person to be released without bail if they promise to go on an alcohol monitoring program.

  • 3rd Degree DWI:

3rd Degree DWI is a gross misdemeanor. 3rd Degree DWI occurs when one (1) aggravating factor is present. The maximum amount of bail that may be set for 3rd Degree DWI is $12,000.

3rd Degree DWI can carry a mandatory maximum bail, with mandatory conditions, under certain situations. Mandatory maximum bail for a 3rd degree DWI means that a Judge is required to set bail at $12,000 without conditions. Mandatory conditions mean that, in an alternative to posting $12,000 bail, a Judge is required to have an individual agree to intensive alcohol monitoring while their case is pending. The intensive alcohol monitoring usually costs around $30 per day.

3rd Degree DWI carries these mandatory maximum bail and mandatory conditions if one of the following aggravating factors are present:

1. the individual has no prior offenses, but submits to a chemical test which registers alcohol concentration at .20 or more


2. the individual has a child under the age of 16 in the car, and the individual is 36 months older than the child.

So, if an individual is charged with a 3rd Degree DWI, but tests under a .20 and does not have a child under 16 in the car, then the individual is not subject to mandatory maximum bail or mandatory monitoring conditions.

  • 2nd Degree DWI:

2nd Degree DWI is a gross misdemeanor. 2nd Degree DWI occurs when two (2) or more aggravating factors are present.

All 2nd Degree DWI charges carry a mandatory maximum bail of $12,000 without conditions or, in the alternative, release with a lower amount of monetary bail, provided the offender is willing to submit to intensive alcohol monitoring.

  • 1st Degree Felony DWI:

1st Degree DWI is a felony. 1st Degree DWI occurs when the individual has 3 prior convictions within the past 10 years. Note that felony DWI does not occur because 3 aggravating factors are present All prior convictions are aggravating factors, but not all aggravating factors are prior convictions. The person must have 3 prior convictions within the past 10 years to be charged with felony DWI.

Despite what you may read elsewhere, there is no mandatory maximum bail for felony DWI. Felony DWI bail is solely up to the discretion of the Judge. If your friend, family member, or loved one needs bail set on a Minnesota DWI, contact an experienced Minnesota DWI Defense Attorney right away.

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