Anyone who’s been through the Bail process probably remembers wondering, “What’s the difference between conditional and unconditional release, what does it have to do with bail, and why can’t I just leave now?!” 

According to the Minnesota Rules of Criminal Procedure, specifically Rule 6.02, anyone charged with an offense is released without bail, pending his or her first court appearance – usually called an arraignment or Rule 5 or 8 hearing.  Once an individual returns to court for that first hearing, something called “Conditions of release” are usually imposed by the court, pending the next hearing, which is usually called an omnibus, or pre-trial hearing. 

Usually, individuals are released on their own recognizance, which means that the individual simply must remain law-abiding and return to court for his or her next court date.  However, the court can impose conditions of release on individuals, to ensure that the individual will return for the next appearance. There are four common conditions that are used in Minnesota, and these are enumerated in the Minnesota Rules of Criminal Procedure: 

(a)    Place the person in the care and supervision of a designated person or organization agreeing to supervise the person; 

b) Place restrictions on the travel, association or place of abode during the period of release; 

(c) Require the execution of an appearance bond in an amount set by the court with sufficient    solvent sureties, or the deposit of cash or other sufficient security in lieu thereof; or 

(d) Impose any other condition deemed reasonably necessary to assure appearance as required,   including a condition requiring that the person return to custody after specified hours. 

It’s important to know that the judge is required by the Rules of Criminal Procedure to go down this list in order and choose the first one that will reasonably secure the person’s presence at the next hearing.  This means that a judge can’t order someone to post bond (letter c) if placing restrictions in that person’s travel or living arrangements would be sufficient to secure his or her appearance (letter b). 

It’s also important for a lawyer to argue that a judge release someone without having to post bail whenever possible because in cases in which restitution is potentially an issue, bail is not returned to the individual EVEN AFTER the individual returns for court.  The posted amount can be refunded to the court and held for payment of court fines and restitution.  In cases without the potential for restitution, an individual can receive his or her money back, once the next court appearance is successfully finished. 

According to Minnesota law, bail, (described in part c above) if set by the court, must be set in two amounts: One amount for conditional bail – meaning the individual has other conditions he or she must agree to in addition to posting the bail amount.  Conditional bail is almost always a smaller dollar amount, because the conditions imposed along with it are considered to help assure the individuals’ appearance at the next hearing, and so less money is requested up front from the person and the bail bondsman.  The second amount is usually higher, because it is imposed without any conditions, meaning the individual must post bond in that higher amount, but no other conditions will apply, except that he or she must appear for the nextcourt date. 

Sometimes district judges overstep their power when selecting conditions of release.  In the case of State v. Martin, decided January 3, 2008 by the Minnesota Court of Appeals, a district court released Mr. Martin on conditional bail, with one of the conditions being that Mr. Martin submit to drug testing, because Mr. Martin was facing a fifth degree controlled substance charge and wished to establish a baseline to determine whether Mr. Martin was using drugs in between his arraignment and the next court date. 

 Mr. Martin’s lawyer objected, and the court agreed that setting the drug testing as a condition of bail had nothing to do with Mr. Martin returning tocourt.  Mr. Martin appealed, and the Appellate Court agreed – stating that even though the district court had a blanket policy of imposing drug testing as a condition of bail when an individual was facing drug charges, this standard district court practice was inconsistent with Minnesota Rules of Criminal Procedure 6.02. 

 However, the Appellate Court also said that the district court can take into account thenature and circumstances of the offense charged when determining the reasonable likelihood of appearance, and the controlled substance issue is more appropriately considered on a case-by-case basis as a factor under the rule. The Court of Appeals also holds that Rule 6.02 is constitutional in providing pretrial conditional release as an alternative to unconditional release. In setting conditional release under the rule, a district court may consider public safety as a factor in setting the conditions.” 

You can read the full Appellate Opinion here: State v. Michael James Martin, A06-2460 (Minn. 01/03/08). www.lawlibrary.state.mn.us/archive/supct/0801/OPA062460-0103.htm

 In an unpublished opinion entitled State v. Berryhill from the Minnesota Appellate Court that came out this last Tuesday, August 4,2009, a big discussion was held about the difference between the appellant’s claim of “ineffective assistance of counsel” and something the Court called “trial strategy”.  Sound a little scary?  It is: Claims of ineffective assistance of counsel are something that good lawyers and the courts take very seriously.   But what constitutes “ineffective assistance of counsel” and how do you avoid it?

It’s common knowledge that in among our constitutional rights such as the right to remain silent, the right to a trial by our peers, and the right to confront witnesses against us, we also have the right to a lawyer in criminal matters.  But it wasn’t until 1963, in the famous case of Gideon v. Wainwright, that the right to a lawyer in a criminal case meant public defenders would be appointed to represent individuals who meet certain income guidelines, and that the magic language “effective assistance of counsel” became part of our legal rights, too.  Technically, this right to the “effective assistance of counsel” is a 14th amendment right, because having a competent lawyer by your side during a criminal case is said to go to the “fairness of the proceedings”.

So, what happened in Berryhill?  Mr. Berryhill had been drinking in his van with friends, and had parked the van in a Wal-Mart parking lot.  The manager of the store called the police, and then watched as someone drove the van from one end of the parking lot to the other, while waiting for the police to arrive.  The police arrived and arrested Mr. Berryhill for felony DWI, based on open containers in the van, the keys in the ignition and Mr. Berryhill’s failure of a field sobriety test.  Mr. Berryhill later had a breath test result of 0.23. 

After a jury convicted Mr. Berryhill of two counts of felony DUI, he appealed the conviction on the grounds that his lawyer had provided ineffective assistance of counsel by not filing the proper paper work to raise an affirmative defense on Mr. Berryhill’s behalf during trial.  The affirmative defense in question was one called “Post-Driving Consumption of Alcohol,” and consists of exactly what it implies – that the defendant should not be found guilty of DUI because the defendant’s intoxication was due to alcohol consumed after the defendant drove the vehicle.  This affirmative defense is only allowed to be used in trials, according to Minnesota law, if the defense attorney has provided the statutorily required notice to the prosecution that the defense will be raised.  Mr. Berryhill’s attorney did not provide this notice because the attorney did not use that defense during trial.

The Appellate Court reasoned that the defense attorney’s decision not to provide notice and not to use that affirmative defense was not conduct that rose to the level of ineffective assistance of counsel.  The Court said that in order for the lawyer’s decision to rise to the level of ineffective assistance:

“The defendant must affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”

The Court continued to state that in fact, Mr. Berryhill’s defense attorney’s decision not to use that particular affirmative defense was a trial strategy that the defense attorney had decided to use, and that therefore it was well within the bounds of the objective standard of reasonableness because “the waiver of an affirmative defense or the failure to assert a defense is a permissible exercise of the defense attorney’s discretion is selecting a trial strategy.”

Now, how do you avoid a situation in which you have to try to raise a claim of ineffective assistance of counsel?  Fortunately, the answer is simple: Choose your attorney carefully.  You should hire someone with whom you feel comfortable talking candidly about your case and the attorney’s strategy for handling it, so as to avoid any confusion.  Communication and trust between you and your Minnesota DUI lawyer are critical to the successful resolution of your case.

To read the full Appellate Opinion, click on this link:

http://www.mncourts.gov/opinions/coa/current/opa081318-0804.pdf

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