The 36 and 48-Hour Rules Following An Arrest
Getting arrested in Minnesota is stressful, and you are often not thinking about anything other than: “how do I get out of here?” This is when two powerful rules, the 36-hour and 48-hour rules, protect you from being held too long without seeing a judge. These time limits matter and knowing how they work helps you stand up for your rights when it counts most.
The 36-Hour Rule
Under Minnesota Rule of Criminal Procedure 4.02, if an adult is arrested without a warrant, they must be brought before a judge without unnecessary delay, no later than 36 hours after the arrest. If this deadline is not met, the arrested person must be released. This rule applies to anyone arrested for a misdemeanor, gross misdemeanor, or felony offenses. However, being released does not prevent the prosecutor from filing charges against you later. This rule does not apply to juveniles. Importantly, the 36-hour clock does not start at the moment of arrest. Instead, it begins at midnight on the day after your arrest, and Sundays and legal holidays do not count toward the 36-hour calculation. So, for example, if someone is arrested for a DWI on a Saturday at 2 a.m. after a night out, the entire day of Saturday does not count towards the 36-hours, neither does the following day, Sunday, making the 36-hour clock start at midnight Monday and the deadline is Tuesday at noon. For a worse example, if you’re arrested on Thanksgiving during the early morning hours, the deadline isn’t until Monday at noon.
The 48-Hour Rule
Under the Minnesota Rules of Criminal Procedure. 4.03 and County of Riverside v. McLaughlin, a person arrested without a warrant may not be detained for more than 48-hours from the time of arrest, unless a judge has signed a complaint or a judicial determination that probable cause has been made. If this does not occur, the individual must be released. Unlike the 36-hour rule, the 48-hour rule applies to juveniles and adults alike and triggers immediately after arrest. You count every single second of every day after you have been arrested; the clock does not stop running for any reason. A judicial probable cause determination within 48 hours of a warrantless arrest will generally satisfy the Fourth Amendment (which protects Americans’ rights against unreasonable searches and seizures); however, even if a judicial determination is made, there can still be a violation of your 4th Amendment rights if it is proven that the delay was nevertheless unreasonable. If the hearing occurs after 48 hours, the delay is presumptively unreasonable and the burden shifts to the State to show a bona fide emergency or another extraordinary circumstance.
What if These Rules are Violated?
A violation of either rule does not automatically mean that the State will be sanctioned, or that evidence will be suppressed. Instead, whether evidence or statements should be excluded is decided on a case-by-case basis. The Minnesota Supreme Court in State v. Wiberg identified four factors that guide this decision:
(1) the reliability of the evidence, (2) whether the delay was intentional, (3) whether the delay made other police misconduct worse, and (4) the length of the delay.
If there was an assertion by the Defendant that the 36-hour rule was violated, the State must show, that more likely than not, that there was good cause for the delay. If the State meets this burden, the Defendant must then show, also by a preponderance of the evidence, that the violation and the Wiberg factors together justify exclusion or suppression of evidence.
For the 48-hour rule, if a judge makes a determination within 48 hours, but the Defendant believes the delay was still unreasonable, the Defendant must prove by a preponderance of the evidence that the delay was unreasonable. However, if the delay exceeds 48 hours, it is presumed unreasonable. In that case, the State must prove, by a preponderance of the evidence, that there was a genuine emergency or some other extraordinary circumstance to justify the delay.
Contact a Minnesota Criminal Defense Attorney Today
Being aware of the 36-hour and 48-hour rules is essential for anyone facing arrest in Minnesota. At North Star Criminal Defense, our attorneys are well-versed in these rights and tirelessly fight for our clients. We have successfully fought for our clients’ release early, before the deadlines are reached, including getting them released over a weekend – no easy feat, but one that can save a client from collateral consequences (such as losing a job) stemming from being in custody for an extended duration. If you or someone you know is currently in-custody, they need a seasoned criminal defense attorney to get to work fighting for their release immediately. Call us today.