This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Paul Richard Nogosek,



Filed December 11, 2001


Crippen, Judge


Mille Lacs County District Court

File No. K001966


Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, Suite 1000, Circle K, Shakopee, MN  55379 (for appellant)


Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


This is an expedited appeal from an order setting bail in a first-degree DWI prosecution.  Because we conclude that the DWI bail statute, Minn. Stat. § 169A.44, is constitutional, we affirm.


Appellant Paul Nogosek was stopped on September 3, 2001, after police received reports of a drunken driver. Appellant agreed to take a breath test and was charged with gross misdemeanor DWI based on the results of that test and on appellant’s prior DWI conviction.

            At appellant’s first appearance, the prosecutor asked that bail be set at $12,000, the statutory maximum, or, alternatively, at $8,000 along with nonmonetary conditions, specifically to include electronic alcohol monitoring.  The prosecutor cited the strength of the state’s case and the danger to public safety, including the fact that appellant had three child passengers at the time he was stopped.  Appellant’s attorney argued that the court should follow Minn. R. Crim. P. 6.02, subd. 1, and fix bail without other conditions.  Appellant’s attorney argued that the DWI bail statute relied on by the prosecutor violated the separation-of-powers clause of the state constitution.

            The trial court set bail at $12,000, or, in the alternative, at $6,000 in the event that appellant submit to electronic alcohol monitoring and abstain from alcohol or drugs.  Appellant, who posted a $12,000 bail bond, filed an appeal from the order, and this court has expedited the appeal on his motion.


Appellant argues that the DWI bail statute, Minn. Stat. § 169A.44, which mandates certain conditions of pretrial release for certain DWI defendants, conflicts with Minn. R. Crim. P. 6.02, subd. 1, the rule governing pretrial release, and therefore violates the constitutional provision for separation of judicial and legislative powers.

The constitutionality of a statute is a question of law, which this court reviews de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).  A statute is presumed to be constitutional, and a court’s power to declare a statute unconstitutional will be exercised “with extreme caution and only when absolutely necessary.”  State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998) (citations omitted).  A party challenging the constitutionality of a statute has the burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.  Id.

The state argues first that because appellant has posted bail this appeal is moot.  An appeal is considered moot if “the court is unable to grant effectual relief.”  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).  Although this appeal cannot directly affect appellant’s custody status, there are forms of relief other than release from custody that can be granted in a bail appeal.  In particular, some or all of the money appellant has deposited to obtain a bail bond could be returned to him if this court were to order that bail should be reduced or that release without bail were appropriate.  Appellant’s release on bail does not moot this appeal.

The DWI bail statute applies to certain defendants charged with this offense, including those, like appellant, charged with having an alcohol concentration of more than .20.  Minn. Stat. § 169A.44(a) (2000).  It provides, in part:

(b) Unless maximum bail is imposed under section 629.471, a person described in paragraph (a) may be released from detention only if the person agrees to:

(1)              abstain from alcohol; and

(2)              submit to a program of electronic alcohol monitoring * * * .


Minn. Stat. § 169A.44(b) (2000).

            The rule governing pretrial conditions of release provides:

Upon appearance before a judge * * * a person so charged shall be ordered released pending trial or hearing on personal recognizance or on order to appear or upon the execution of an unsecured appearance bond * * * unless the court * * * determines, in the exercise of discretion, that such a release will be inimical of public safety or will not reasonably assure the appearance of the person as required.


Minn. R. Crim. P. 6.02, subd. 1.  The rule thus establishes a preference for release on personal recognizance, or on an order to appear, or on other conditions less onerous than monetary bail.  See State v. Brooks, 604 N.W.2d 345, 351 (Minn. 2000).

Appellant argues that the statute conflicts with the rule because it mandates certain conditions of release more onerous than release on personal recognizance or order to appear that are favored by the rule.  Appellant argues that the statute removes much of the discretion that Rule 6.02, subd. 1, invests in the trial court.

In matters of procedure rather than substance, the criminal rules take precedence over any statute to the contrary.  State v. Johnson, 514 N.W.2d 551, 554 (Minn. 1994).  A statute is substantive if it defines an offense or its punishment, or creates, defines, or regulates rights.  Id.  The DWI bail statute does not create a criminal offense or define the punishment for it.  But it does regulate a DWI defendant’s right to bail, which is a constitutional right.  See generally Brooks, 604 N.W.2d at 354 (recognizing defendant’s constitutional right to post bail by alternative forms of surety).  As a result, the matter of conditions of pretrial release is not strictly procedural, in the manner of rules of evidence or other trial procedures, such as the order of closing argument, which do not directly impact any constitutional right.  Cf. State v. Azure, 621 N.W.2d 721, 724 (Minn. 2001) (concluding that peremptory removal of judges was strictly procedural matter governed by rule rather than statute); State v. Breaux, 620 N.W.2d 326, 332 (Minn. App. 2001) (implying that order of closing argument is procedural matter, but deferring to statute as a matter of comity).

Thus, appellant has not met his burden of proving beyond a reasonable doubt that bail is a strictly procedural matter in which the rule must take precedence over the statute.  And appellant’s claim that, until recently, bail matters have been governed exclusively by rule rather than statute is without merit.  Many of the bail provisions in Minn. Stat. ch. 629 are derived from statutes enacted in the 19th century.  See Minn. Stat. § 629.44; see generally State v. Bartlett, 70 Minn. 199, 200-01, 72 N.W. 1067, 1067-68 (1897)  (examining history of bail statutes limiting justice of the peace authority to fix bail).  The legislature has historically provided guidance in the administration of bail.

This court must exercise “great restraint” in applying the separation-of-powers doctrine to invalidate statutes.  State v. Willis, 332 N.W.2d 180, 184 (Minn. 1983).  Even if we were to conclude that the DWI bail statute clearly conflicts with the rule and that bail is a strictly procedural matter, we would be obligated to consider deferring to the statute “as a matter of comity.”  Breaux, 620 N.W.2d at 332.  But it is apparent that appellant has not met his burden of proving a clear conflict on a strictly procedural matter.  We also note that Rule 6.02, subd. 1, would permit the trial court, in the exercise of its discretion, to reach the same bail decision that the DWI bail statute mandates. 

Because appellant has not met his burden of proof and principles of comity support deference to the legislative enactment, we decline to hold the DWI bail statute violates the separation-of-powers clause.