Warning: Parameter 1 to Cite::clearState() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 1 to Cite::clearState() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 1 to Cite::clearState() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 2 to Cite::checkRefsNoReferences() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 2 to Cite::checkRefsNoReferences() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 1 to Cite::clearState() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 1 to Cite::clearState() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 2 to Cite::checkRefsNoReferences() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 2 to Cite::checkRefsNoReferences() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 1 to CiteHooks::onResourceLoaderRegisterModules() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195

Warning: Parameter 1 to Cite::clearState() expected to be a reference, value given in /nfs/c04/h02/mnt/181397/domains/mnbenchbook.org/html/includes/Hooks.php on line 195
Misdemeanor Arrest & Charging Procedure - MN Bench Book - Trial Procedures & Practices for Judges

Misdemeanor Arrest & Charging Procedure

From MN Bench Book - Trial Procedures & Practices for Judges

Criminal procedure flow chart.png

A. In Presence Limitation

A person can be arrested for a misdemeanor or gross misdemeanor only if the offense (behavior) occurs in the presence of the arresting officer or person. This is a statutory limitation set forth in Minn. Stat. § 629.34(1).

The standards to be used in determining whether or not an offense has been committed or attempted in the presence of the officer are set forth in State v. Pluth, 157 Minn. 145, 195 N.W. 789 (1923).

Absent this "in presence", a misdemeanor or gross misdemeanor arrest based on “hear say” based probable cause is illegal and evidence obtained subsequent to it can be suppressed. There are several gross misdemeanor and misdemeanor offenses where, by statute, a person can be arrested based on hear say based probable cause similar to a hear say based arrest for a felony. These non-felony offenses where arrest is not limited to the in presence rule are:

  1. Domestic Violence: MSA 629.341, subd. 1
  2. Violation of Order for Protection: MSA 518B
  3. Theft in Business Establishments: MSA 629.366
  4. Passing School Bus Discharging or Receiving Passengers: MSA 169.44
  5. DWI: MSA 169A.40

Citizens can also arrest others for misdemeanors and gross misdemeanors committed in their presence. They must immediately deliver the arrested person to a peace officer or magistrate.

Citizen's arrests frequently arise from traffic accidents and alleged shoplifters arrested by store personnel.

B. Charging

Charging is the formal commencement or beginning of the formal accusation stage of the criminal process.

An individual can be charged with a misdemeanor by arrest and tab charge, arrest and citation, a complaint and summons, a complaint and warrant or by indictment by the grand jury. The majority of misdemeanors are charged via a tab charge or through the issuance of a citation.

A person can only be charged with a gross misdemeanor by the issuance of a formal complaint or by grand jury indictment. The one exception is that a gross misdemeanor DWI can be tab charged.

A person can only be charged with a felony by a formal complaint or by grand jury indictment.

Four Charging Procedures:

  1. Arrest, Booking & Tab Charge
In this situation, the arrested person is “booked” (admitted) into a jail facility by the arresting officer. Part of the booking process involves the officer informing the person and the jail facility
what offense(s) he or she is being charged with. The jail facility enters the charge(s) into a court charging system. The person is considered “Tab Charged” at this point.
a. A Tab charge is a brief statement of the offense charged including a reference to the statute, Rule, regulation ordinance or other provision of law which the defendant is alleged to have violated… M. R. Cr. P.1.04 (c)
b. The term “Tab” originates from a time when the charge(s) against a person were entered manually on a paper Tab.
If the suspect remains in custody they must be brought before a judge within thirty six hours of his arrest, exclusive of the day of arrest, Sundays and legal holidays. M. R. Cr. P. 4.02, subd. 5(1), infra.
Many offenders arrested for and booked into a jail and Tab charged for a misdemeanor are released within a few hours, prior to their first court appearance. They are given a date and time to appear in court by the jail facility when released.
2. Arrest & Issuance of a Citation
In this situation an individual, arrested for a misdemeanor or a petty misdemeanor, is issued a citation (usually at the location of the arrest) by the arresting officer in lieu of continued detention or booking into a jail facility. The citation states the offense(s) the person is charged with, including the date, time and location of the offense and may contain a short description of the offense. It also directs the person to appear in a designated court at a specified time and place. M. R. Cr. P. 4.02, subd. 2; M. R. Cr. P. 6.01, subds. 1 and 3.
3. Complaint & Summons
A formal complaint is a two part written statement containing:
a. A fact statement sworn to by a person who has first or second hand knowledge of the fact statements in the complaint. This fact statement is reviewed by a judge who must make a determination that, based on the facts and allegations in the complaint, probable cause exists to believe a misdemeanor or gross misdemeanor has been committed and that the named defendant committed it.
The fact portion of the complaint must be signed by a person (usually a police officer) who, under oath, states that he or she has knowledge, either direct or based on reliable hearsay, of the facts and allegations in the complaint.
b. A judge then reviews the sworn fact statement to determine if the facts support, to a probable cause level, a determination that the crime specified in the complaint was committed and the person named in the named complaint as the defendant committed it. If a probable cause finding is made, the complaint is signed by the judge and filed with the appropriate court which then prepares a summons which is mailed to the defendant setting forth a date, place and time in a particular court for the defendant to appear on the charge or charges set forth in the complaint.
Charges are initiated by complaint when the "in presence" arrest criteria or one of the exceptions does not exist, when charges are the result of investigation and compilation of information from a variety of sources, or when citizens present to a law enforcement agency or a prosecutor evidence of a crime allegedly committed against them in the past such as a wife presenting a police department information that her husband assaulted her. M. R. Cr. P. 2
If the defendant does not appear in court on the summons, a warrant for his or her arrest will be issued. M. R. Cr. P. 3.01.
4. Complaint & Warrant for Arrest
(Complaint procedure is the same as complaint and summons)
After the finding of probable cause in the complaint, a prosecutor can request that an arrest warrant be issued instead of a summons by establishing either that:
a. It reasonably appears that there is a substantial likelihood that defendant will fail to respond to a summons, or
b. The whereabouts of the defendant is unknown, or
c. The arrest of the defendant is necessary to prevent imminent bodily harm to himself or another. M. R. Cr. P. 3.01.


MNCIS is the Minnesota Court Information Ssytem. It is the current court electronic data base. Using this system you can access criminal court case files. To access MNCIS go http://www.mncourts.gov. Click on access to trial court records upper left of screen. Scroll to bottom of screen and click the box “accept”. Name searches in MNCIS will not show a pending case. The Odyssey system, which is the higher level access provided persons working in the criminal justice system will allow access to a pending case. Use a MNCIS # to find a case record.

The first two digits in the MNCIS number represents the county where the case originated, 27= Hennepin, 62 = Ramsey. Next are the letters CR or VB indicating the case is a criminal case either charged by indictment,complaint or tab charge (CR) or charged by citation (VB = Violations Bureau). The first two numbers after CR or VB in the next series of numbers indicate the year the case was filed in court. Note this not the offense date but the date the charge was filed in court.

Once a case is formally charged the person and case is assigned a MNCIS number.

First Court Appearance After Charging

All of charging procedures result in the defendant being required to appear in court on the charge(s).
At a misdemeanor or petty misdemeanor defendant's first court appearance, he or she may:

a. Request and obtain a continuance in order to obtain legal counsel;
b. Demand a formal written complaint if the charge is a misdemeanor;
c. Enter a plea of not guilty and demand a jury or court trial;
d. Enter a plea of guilty, (M. R. Cr. P. 5.01, 8.02);
e. Make a summary motion to dismiss for want of personal jurisdiction, (M. R. Cr. P. 10.02).
f. Request an evaluation and examination to determine his competency to participate in his own defense (M. R. Cr. P. 20).

First Appearance Options for Misdemeanors and Petty Misdemeanors

Defendant Prosecutor Actions OR Response to Defendant's Action
Request continuance to obtain an attorney Argue bail and conditions of release
Request appointment of a Public Defender Argue bail and conditions of release
Demand Complaint Argue bail and conditions of release
Plead Guilty (Arraignment) 1. Request court not to accept please and grant continuance to review for possible GM or felony charges OR
2. Argue sentencing perspectives and parameters
Settle case without a plea Offer settlement without a plea
Plead Not Guilty (Arraignment);
Oppose Petty Misdemeanor Certification
1. Add misdemeanor charges
2. Amend charges
3. Certify as petty misdemeanor
4. Dismiss
5. Serve Rule 7 (Rasmussen) and Rule 9 notices
6. Argue bail and conditions of release
Request psychological evaluation regarding competency 1. Join in or initiate request
2. Oppose request
3. Argue bail and conditions of release
Negotiate settlement with or without a plea Negotiate settlement with or without a plea
Dismiss at 1st appearance calendar before arraignment

Duty to Advise

Before the defendant does anything at their first appearance he or she must be advised of the following:

  1. That s/he is not required to say anything or submit to interrogation and that anything s/he says may be used against him in this or in any subsequent proceedings;
  2. That s/he has a right to counsel in all subsequent proceedings, including police line ups and interrogations, and if s/he appears without counsel and is financially unable to afford counsel, that counsel will forthwith be appointed without cost to him or her if s/he is charged with an offense punishable upon conviction by incarceration;
  3. That s/he has a right to communicate with his or her counsel and that a continuance will be granted if necessary to enable the defendant to obtain or speak to counsel;
  4. That s/he has a right to a jury trial or a trial to the court;
  5. That if the offense is a misdemeanor and s/he has not been charged by complaint, s/he may either plead guilty, or demand a complaint prior to entering a plea. M. R. Cr. P. 5.01;
  6. That s/he may plead not guilty.
  7. That if s/he is not a citizen of the United States, there may immigration consequences if they plead guilty to the charge(s) they are in court for. Their case can be continued to give them an opportunity to discuss possible immigration consequences of the charge(s) pending against them.

Gross Misdemeanors First Appearance

At the first appearance of a person charged with a gross misdemeanor, he or she will be identified on the record (state name, date of birth, address and phone number). The person may plead guilty to the gross misdemeanor at this first appearance. If a defendant does not plead guilty at his or her first appearance, he or she will be given a date for a combined probable cause review -pretrial conference hearing. This hearing must be held within 14 days of the person's first appearance. If the gross misdemeanor charge is not resolved at the first appearance a not guilty plea is not entered until the probable cause hearing has been completed. (M.R.Cr.P. 5.03 & 8)

Amendment or Addition of Charges: Misdemeanors & Petty Misdemeanors

At the defendant's first court appearance on a misdemeanor or petty misdemeanor, prosecutors may, by oral motion, add or amend misdemeanor or petty misdemeanor charges if the additions or amendments are related to the same behavioral incident that the original charges arose out and for which the defendant is currently in court for. M. R. Cr. P. 11.05, 12.05, 17.05, 2.01, 4.02, subd. 5(3).

Note: Prosecutors cannot orally add or amend a gross misdemeanor charge.

Petty Misdemeanor Certification by the Prosecutor

At or before the defendant's arraignment or pre-trial prosecutors have the authority pursuant to M.R.Cr.P 23.04 to certify to the court that, in the interests of justice, an offense, initially charged as a misdemeanor, be treated as a petty misdemeanor for trial and sentencing purposes. The court must approve such certification. THE DEFENDANT'S CONSENT IS NECESSARY.

If the court approves such a certification, the defendant is not entitled to a jury trial, and, if convicted or pleads guilty, cannot be incarcerated. A petty misdemeanor is not deemed a crime, M. R. Cr. P. 23.06. Prosecutors will often attempt to certify a misdemeanor as a petty misdemeanor when the defendant pleads not guilty and demands a jury trial for a charge that the prosecutor believes is relatively minor and would not normally result in a jail sentence upon conviction. Certifying a misdemeanor to a petty misdemeanor avoids the expense and time of a jury trial. Court trials can be conducted in a matter of hours compared to one or more days that it takes to conduct a jury trial.

Demanding the Complaint

At his or her first court appearance, if the charge(s) against the defendant have been initiated by a tab charge or citation (for example, defendant has been arrested and tab charged or arrested and issued a citation), the defendant has the right to demand a complaint. M. R. Cr. P. 4.02, subd. 5(3). If the defendant is in custody, the complaint shall be prepared and filed with the court within forty eight (48) hours of such demand.

If the defendant is not in custody, the complaint shall be prepared and filed within thirty (30) days of such demand. If the complaint is not filed within the required time period, the charges are dismissed and the defendant is discharged from the jurisdiction of the court. Id.

If a complaint is demanded and on the defendant's reappearance, a complaint has not been issued, the defendant may request an order from the court barring further prosecution on this charge subsequent to expiration of thirty (30) days from the date of the original demand for the complaint. M. R. Cr. P. 17.06, subd. 4. A request for such an order should always be made when a complaint has been demanded and then not issued.

Tactically, complaints are demanded when the defendant or the defendant's attorney does not believe that the facts alleged by the state in police and other investigatory reports can support a finding of probable cause to believe a crime was committed and that the defendant committed it and that there are no additional facts the state could gather that would result in a finding of probable cause. Complaints are also demanded when a defense attorney believes that while there may sufficient facts to support the issuance of a complaint, the prosecutor may decide on a cost-benefit analysis that the behavior is so minor that it is not worth it time wise to prepare a complaint.

C. Court Hearings


This stage of the criminal process involves the entry of a plea of: a) guilty; b) not guilty; c) not guilty by reason of mental illness or mental deficiency; d) double jeopardy or that prosecution is barred by Minn. 609.035, infra.

The arraignment usually occurs at a defendant's first court appearance on a misdemeanor. M. R. Cr. P. 5.04, 14.01. A defendant is not arraigned at his first appearance on a gross misdemeanor unless he exercises his right to plead guilty pursuant to M. R. Cr. P. 8.02.

Pre-Trial Release (Bail)

When a defendant enters a plea of not guilty, demands a complaint, obtains a continuance in order to obtain an attorney, or is given a future date on any pending charge, he or she must be released pending that future court appearance. The release can be with or without bail (See M. R. Cr. P. 6.).

a. Basically, the presumption in the criminal rules is that all persons charged with a misdemeanor should be released without bail pending any future court appearance subject to one of the following conditions:
  1. The person gives his or her recognizance (promise) to reappear;
  2. The person is ordered to reappear;
  3. The person executes an unsecured appearance bond in a specified amount, (a promissory note to pay the court a certain amount should the person fail to appear).
b. If a judge determines that the above type of release would be inimical to public safety or would not reasonably assure the appearance of the defendant, the following conditions of release should be considered by the court:
  1. Place the person in the care and supervision of a designated person or organization agreeing to supervise him or her;
  2. Place restrictions on the travel, association or place of abode of defendant during the period of release;
  3. 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
  4. 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. In any event, the court shall also fix the amount of money bail without other conditions, other than making all future court appearances and remaining law abiding, upon which the defendant may obtain release.

The defendant's release shall be conditioned on his or her appearing at all future court appearance including a trial or any hearing, Omnibus Hearing, evidentiary hearing and the pretrial conference prescribed by these rules, or at the taking of any deposition that may be ordered by the court.

In determining which conditions of release will reasonably assure such appearance, the judge, judicial officer, or court shall on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant’s family ties, employment, financial resources, character and mental condition, the length of the defendant’s residence in the community, his or her record of convictions, his or her record of appearance at court proceedings or flight to avoid prosecution, and the safety of any other person or of the community. M. R. Cr. P. 6.02.

A person released without posting bail but required to comply with certain conditions (for example, stay away from victim, attend AA) is on a conditional release. Defense attorneys should always request a conditional release as an alternative to their client's being required to post cash bail. Prosecutors should always request a conditional release in Domestic Assault regular assault and DWI cases. In Domestic assault cases, one of the conditions is always to stay away from the victim.

An individual arrested on a misdemeanor and released by the arresting officer after the issuance of a citation who makes the first court appearance has a strong argument that he or she has proven reliability to make future court appearances solely on his or her promise to appear. Prosecutors should always consider the prior bench warrant history of a defendant who is requesting release without bail.

A person arrested on a misdemeanor in Hennepin or Ramsey County and retained in custody is usually screened in jail immediately after he or she arrives, where the above factors in M. R. Cr. P. 6.02 are considered. Often, after this screening and verification of factors related to community stability, the person is released from jail solely on his or her promise to make their first court appearance.

Again, if the person makes the first court appearance after such a release, the person has a strong argument that he or she has proven reliability in regard to making future court appearances based solely on his or her promise to appear. If the person, arrested on a misdemeanor, remains in jail until the first court appearance because he or she does not meet the criteria for immediate release without bail, many judges will require some cash bail for release pending future court appearances. Judges vary in their bail policy and as a defense attorney you should always request that your client be released without bail.

Domestic Abuse & No Contact Orders

MSA 629.75. A domestic abuse no contact order may be issued as a pretrial order before final disposition of the underlying criminal case or as a post-conviction probationary order. A domestic abuse no contact order is independent of any condition of pretrial release or probation imposed on the defendant. A domestic abuse no contact order may be issued in addition to a similar restriction imposed as a condition of pretrial release or probation. In the context of a post-conviction probationary order, a domestic abuse no contact order may be issued for an offense listed in paragraph (a) of MSA 629.75 or for a conviction for any offense arising out of the same set of circumstances as an offense listed in paragraph (a). (c) A no contact order under this section shall be issued in a proceeding that is separate from but held immediately following a proceeding in which any pretrial release or sentencing issues are decided.