MINNESOTA RULES OF CRIMINAL PROCEDURE

Effective January 1, 1990, with amendments effective

through March 1, 2006

 

Provided by the Minnesota Supreme Court Commissioner’s Office

 
 
Rule 1.  Scope, Application, General Purpose and Construction
1.01  Scope and Application
1.02  Purpose and Construction
1.03  Local Rules by District Court
1.04  Definitions
 
Rule 2.  Complaint
2.01  Contents; Before Whom Made
2.02  Approval of Prosecuting Attorney
2.03  Complaint Forms - Felony or Gross Misdemeanors
 
Rule 3.  Warrant or Summons Upon Complaint
3.01  Issuance
3.02  Contents of Warrant or Summons
3.03  Execution or Service of Warrant or Summons; Certification
3.04  Defective Warrant, Summons or Complaint
 
Rule 4.  Procedure Upon Arrest Under Warrant Following a Complaint or Without a Warrant
4.01  Arrest Under Warrant
4.02  Arrest Without a Warrant
4.03  Probable Cause Determination
 
Rule 5.  Procedure on First Appearance
5.01  Statement to the Defendant
5.02  Appointment of Public Defender
5.03  Date of Rule 8 Appearance in District Court; Consolidation of Appearances Under Rule 5 and Rule 8
5.04  Plea in Misdemeanor Cases
5.05  Bail or Release
5.06  Record
 
Rule 6.  Pretrial Release
6.01  Release on Citation by Law Enforcement Officer Acting Without Warrant
6.02  Release by Judge, Judicial Officer or Court
6.03  Violation of Conditions of Release
6.04  Forfeiture
6.05  Supervision of Detention
6.06  Trial Date in Misdemeanor Cases
 
Rule 7.  Notice by Prosecuting Attorney of Evidence and Identification Procedures; Completion of Discovery
7.01  Notice of Evidence and Identification Procedures
7.02  Notice of Additional Offenses
7.03  Completion of Discovery
 
Rule 8.  Defendant's Initial Appearance Before the District Court Following the Complaint or Tab Charge in Felony and Gross Misdemeanor Cases
8.01  Place of Appearance and Arraignment
8.02  Plea of Guilty
8.03  Demand or Waiver of Hearing
8.04  Plea and Time and Place of Omnibus Hearing
8.05  Record
8.06  Conditions of Release
 
Rule 9.  Discovery in Felony and Gross Misdemeanor Cases
9.01  Disclosure by Prosecution
9.02  Disclosure by Defendant
9.03  Regulation of Discovery
 
Rule 10.  Pleadings and Motions Before Trial; Defenses and Objections
10.01  Pleadings and Motions
10.02  Motions Attacking Jurisdiction of the Court in Misdemeanor Cases
10.03  Waiver
10.04  Service of Motions; Hearing Date
 
Rule 11.  Omnibus Hearing in Felony and Gross Misdemeanor Cases
11.01  Place of Hearing
11.02  Hearing on Evidentiary Issues
11.03  Motions
11.04  Other Issues
11.05  Amendment of Complaint
11.06  Pleas
11.07  Continuances; Determination of Issues
11.08  Record
11.09  [Deleted]
11.10  Plea; Trial Date
11.11  Exclusion of Witnesses
 
Rule 12.  Pretrial Conference and Evidentiary Hearing in Misdemeanor Cases
12.01  Pretrial Conference
12.02  Motions
12.03  Other Issues
12.04  Hearing on Evidentiary Issues
12.05  Amendment of Complaint
12.06  Pleas
12.07  Continuances; Determination of Issues
12.08  Record
 
Rule 13.  Arraignment in Felony and Gross Misdemeanor Cases
13.01  In Open Court
13.02  Right to Counsel
13.03  Copy and Reading of Charges
13.04  Plea
13.05  Record
 
Rule 14.  Pleas
14.01  Pleas Permitted
14.02  Who May Plead
14.03  Time of Plea
 
Rule 15.  Procedure Upon Plea of Guilty; Plea Agreements; Plea Withdrawal; Plea to Lesser Offense
15.01  Acceptance of Plea; Questioning Defendant; Felony and Gross Misdemeanor Cases
15.02  Acceptance of Plea; Questioning Defendant; Misdemeanor Cases
15.03  Alternative Methods in Misdemeanor Cases
15.04  Plea Discussion and Plea Agreements
15.05  Plea Withdrawal
15.06  Plea Discussions and Agreements Not Admissible
15.07  Plea to Lesser Offenses
15.08  Plea to Different Offense
15.09  Record of Proceedings
15.10  Guilty Plea to Offenses from Other Jurisdictions
15.11  Use of Guilty Plea Petitions When Defendant Handicapped in Communications
  
   Appendix A to Rule 15
   Appendix B to Rule 15
   Appendix C to Rule 15
   Appendix D to Rule 15
 
Rule 16.  Misdemeanor Prosecution by Indictment
 
Rule 17.  Indictment, Complaint and Tab Charge
17.01  Prosecution by Indictment, Complaint or Tab Charge
17.02  Nature and Contents
17.03  Joinder of Offenses and of Defendants
17.04  Surplusage
17.05  Amendment of Indictment or Complaint
17.06  Motions Attacking Indictment, Complaint or Tab Charge
 
Rule 18.  Grand Jury
18.01  Summoning Grand Juries
18.02  Objections to Grand Jury and Grand Jurors
18.03  Organization of Grand Jury
18.04  Who May be Present
18.05  Record of Proceedings
18.06  Kind and Character of Evidence
18.07  Finding and Return of Indictment
18.08  Secrecy of Proceedings
18.09  Tenure and Excuse
 
Rule 19.  Warrant or Summons Upon Indictment; Appearance Before District Court
19.01  Issuance
19.02  Form
19.03  Execution or Service; Certification of Execution  or Service
19.04  Appearance of Defendant Before Court
19.05  Bail or Conditions of Release
19.06  Record
 
Rule 20.  Proceedings for Mentally Ill or Mentally Deficient
20.01  Competency to Proceed
20.02  Medical Examination of Defendant Upon Defense of Mental Deficiency or Mental Illness
20.03  Disclosure of Reports and Records of Defendant's Mental Examinations
 
Rule 21.  Depositions
21.01  When Taken
21.02  Notice of Taking
21.03  Expenses of Defendant and Counsel; Failure to Appear
21.04  How Taken
21.05  Transcription, Certification and Filing
21.06  Use of Deposition
21.07  Effect of Errors and Irregularities in Depositions
21.08  Deposition by Stipulation
 
Rule 22.  Subpoena
22.01  For Attendance of Witnesses; Form; Issuance
22.02  For Production of Documentary Evidence and of Objects
22.03  Service
22.04  Place of Service
22.05  Contempt
22.06  Witness Outside the State
 
Rule 23.  Petty Misdemeanors and Violations Bureaus
23.01  Definition of Petty Misdemeanor
23.02  Designation as Petty Misdemeanor by Sentence Imposed
23.03  Violations Bureaus
23.04  Designation as a Petty Misdemeanor in a Particular Case
23.05  Procedure in Petty Misdemeanor Cases
23.06  Effect of Conviction
 
Rule 24.  Venue
24.01  Place of Trial
24.02  Venue in Special Cases
24.03  Change of Venue
 
Rule 25.  Special Rules Governing Prejudicial Publicity
25.01  Pretrial Hearings - Motion to Exclude Public
25.02  Continuance or Change of Venue
25.03  Restrictive Orders
 
Rule 26.  Trial
26.01  Trial by Jury or by the Court
26.02  Selection of Jury
26.03  Procedures During Trial
26.04  Postverdict Motions
 
Rule 27.  Sentence and Judgment
27.01  Conditions of Release
27.02  Presentence Investigation in Misdemeanor Cases
27.03  Sentencing Proceedings
27.04  Probation Revocation
27.05  Pretrial Diversion
 
Rule 28.  Appeals to Court of Appeals
28.01  Scope of Rule
28.02  Appeal by Defendant
28.03  Certification of Proceedings
28.04  Appeal by Prosecuting Attorney
28.05  Appeal from Sentence Imposed or Stayed
 
Rule 29.  Appeals to Supreme Court
29.01  Scope of Rule
29.02  Right of Appeal
29.03  Procedure for Appeals in First Degree Murder Cases
29.04  Procedure for Appeals from Court of Appeals
29.05  Procedure for Appeals by the Prosecuting Attorney in Postconviction Cases
29.06  Procedure for Appeals by the Prosecuting Attorney from a Judgment of Acquittal or Vacation of Judgment After a Jury Verdict of Guilty or fro an Order Granting a New Trial
 
Rule 30.  Dismissal
30.01  By Prosecuting Attorney
30.02  By Court
 
Rule 31.  Harmless Error and Plain Error
31.01  Harmless Error
31.02  Plain Error
 
Rule 32.  Motions
 
Rule 33.  Service and Filing of Papers
33.01  Service; Where Required
33.02  Service; How Made
33.03  Notice of Orders
33.04  Filing
33.05  Facsimile Transmission
 
Rule 34.  Time
34.01  Computation
34.02  Enlargement
34.03  For Motions; Affidavits
34.04  Additional Time After Service by Mail
34.05  Unaffected by Expiration
 
Rule 35.  Courts and Clerks
 
Rule 36.  Search Warrants upon Oral Testimony
36.01  General Rule
36.02  When Request by Oral Testimony Appropriate
36.03  Application
36.04  Testimony Requirements
36.05  Issuance of Warrant
36.06  Filing
36.07  Contents of Warrant
36.08  Execution 

 

Index of Forms & Appendix to Rule 15

 

Rule 1. Scope, Application, General Purpose and Construction

 

Rule 1.01 Scope and Application

 

            These rules govern the procedure in prosecutions for felonies, gross misdemeanors, misdemeanors, and petty misdemeanors in the district courts in the State of Minnesota.  Except where expressly provided otherwise, misdemeanors as referred to in these rules shall include state statutes, local ordinances, charter provisions, rules or regulations punishable either alone or alternatively by a fine or by imprisonment of not more than 90 days.

 

Comment—Rule 1

 

See comment following Rule 1.04.

 

Rule 1.02 Purpose and Construction

 

            These rules are intended to provide for the just, speedy determination of criminal proceedings without the purpose or effect of discrimination based upon race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, handicap in communication, sexual orientation, or age.  They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

 

Comment—Rule 1

 

See comment following Rule 1.04.

 

Rule 1.03 Local Rules By District Court

 

            Any court may recommend rules governing its practice not in conflict with these rules or with the General Rules of Practice for the District Courts and those rules shall become effective as ordered by the Supreme Court.

 

Comment—Rule 1

 

See comment following Rule 1.04.

 

Rule 1.04 Definitions

 

            (a) Clerk of Court.   References in these rules to clerks or deputy clerks of court shall include court administrators and deputy court administrators.

 

            (b) Designated Gross Misdemeanors.   As used in these rules, the term “designated gross misdemeanors” refers to gross misdemeanors charged or punishable under Minn. Stat. § 169.20, Minn. Stat. § 169A.25, Minn. Stat. § 169A.26 or Minn. Stat. § 171.24.

 

            (c) Tab Charge.   As used in these rules, the term “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 which the clerk shall enter upon the records. A tab charge is not synonymous with "citation" as defined by Rule 6.01.

 

Comment—Rule 1

 

            By Rule 1.01, these rules govern the procedure in prosecutions for felonies, gross misdemeanors, misdemeanors, and petty misdemeanors in the district courts in the State of Minnesota.  Except where expressly provided otherwise, misdemeanors as referred to in these rules shall include state statutes, local ordinances, charter provisions, rules or regulations punishable either alone or alternatively by a fine or by imprisonment of not more than 90 days.

 

            Rule 1.02 governing the general purpose and construction of the rules is taken from F.R.Crim.P. 2.

 

            In accord with the purpose of these rules to provide for a just and speedy determination of criminal proceedings, the rules specify time limits and consolidate court appearances and hearings whenever possible.  Rule 11 provides for an Omnibus Hearing for the determination of all pre-trial issues.  Under Rules 8.04, 11.04, and 11.07, that hearing must be commenced within 28 days after the appearance under Rule 8 and must be completed and all issues decided within 30 days after the appearance under Rule 8.  Extensions of those time limits may be permitted by the trial court, but only for good cause related to the particular case.  It would violate the purpose of these rules to bifurcate or further continue Omnibus Hearings on a general basis unrelated to the circumstances of a particular case.

           

            It is further the express purpose of these rules that they be applied without discrimination based upon the factors stated in Rule 1.02.  The factors are the same as those set forth in Chapter 363 of the Minnesota Statutes forbidding discriminatory practices in employment and certain other situations except that those handicapped in communication are added to the list of those protected against discrimination. Minn. Stat. §§ 611.31-611.34 (1992).  The Minnesota Supreme Court Task Forces on Gender Fairness and Racial Bias have studied and documented gender and racial bias in the legal system.  Their reports issued June 30, 1989 and May, 1993 respectively contain recommendations to address these problems.  See 15 Wm. Mitchell L.Rev. 827 (1989) (gender fairness report) and 16 Hamline L.Rev. 477 (1993) (racial bias report).  Any recommendations in those reports concerning the Rules of Criminal Procedure have been reviewed carefully and appropriate revisions have been made in these rules.

 

            Beyond the procedures required by these rules, prosecutors, courts, and law enforcement agencies should also be aware of the rights of crime victims as provided in chapter 611A of the Minnesota Statutes. This would include, but is not limited to, the prosecutor's duty to provide notice of a prospective plea agreement (Minn. Stat. § 611A.03); referral to a pretrial diversion program (Minn. Stat. § 611A.031); dismissal of domestic assault or harassment proceedings (Minn. Stat. § 611A.0315); the final disposition of the case (Minn. Stat. § 611A.039); and the pendency of an appeal of the proceedings (Minn. Stat. § 611.0395). Also see Minn. Stat. § 629.72, subd. 7 and Minn. Stat. § 629.725 as to the duty of the court to provide notice of any hearing on release of the defendant from pretrial detention in domestic abuse, harassment or crimes of violence cases, and Minn. Stat. § 629.73 as to the duty of the agency having custody of the defendant in such cases to provide notice of the defendant's impending release.

 

            Rule 1.03 is identical to Rule 83 of the Minnesota Rules of Civil Procedure and is intended to assure uniformity in local rules.  The General Rules of Practice for the District Court were adopted by the Supreme Court effective January 1, 1992 to consolidate and make uniform the local rules of practice throughout the state.  Only a few of the previously existing local rules were preserved as special rules for particular judicial districts.  No local rule is permitted which would conflict with these Rules of Criminal Procedure and to be effective any new local rule must first be approved by the Supreme Court.

 

            Rule 1.04(a) clarifies that any duties, functions or responsibilities set forth in the rules for clerks or deputy clerks also apply to court administrators and deputy court administrators. This is in accord with Minn. Stat. §485.01 (1997). Under Rule 4.02, subd. 5(3) it is possible to commence a prosecution by tab charge for certain designated gross misdemeanors. See Rule 4.02, subd. 5(3) and the comments to that rule for the limitations on such prosecutions. That term is also used in various other places throughout the rules and Rule 1.04(b) specifies the offenses which are considered to be "designated gross misdemeanors".  Minnesota Statutes § 169A. relates to driving, operating, or physical control of a motor vehicle while under the influence of alcohol or a controlled or hazardous substance or refusing to submit to a chemical test and Minn. Stat. §171.24 (1997) relates to driving after cancellation.  Minnesota Statutes § 169A.25 (second-degree driving while impaired), and Minn. Stat. § 169A.26 (third-degree driving while impaired) establish the circumstances under which violations of Minn. Stat. § 169A.20 constitute a gross misdemeanor.

 

Rule 2. Complaint

 

Rule 2.01 Contents; Before Whom Made

 

            The complaint is a written signed statement of the essential facts constituting the offense charged.

 

            Except as provided in Rules 11.06 and 15.08, it shall be made upon oath before a judge or judicial officer of the district court, clerk or deputy clerk of court, or notary public.

 

            Except as provided in Rules 6.01, subd. 3, 11.06 and 15.08, the facts establishing probable cause to believe that an offense has been committed and that the defendant committed it shall be set forth in writing in the complaint, and may be supplemented by supporting affidavits or by sworn testimony of witnesses taken before the issuing judge or judicial officer.  If sworn testimony is taken, a note so stating shall be made on the face of the complaint by the issuing officer.  The testimony shall be recorded by a reporter or recording instrument and shall be transcribed and filed.  Upon the information presented, the judge or judicial officer shall determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it.  When the offense alleged to have been committed is punishable by fine only, the determination of probable cause may be made by the clerk or deputy clerk of court if authorized by court order.

 

            Any complaint, supporting affidavits, or supplementary sworn testimony made or taken upon oath before the issuing judge or judicial officer pursuant to this rule may be made or taken by telephone, facsimile transmission, video equipment, or similar device at the discretion of such judge or judicial officer.

 

Comment—Rule 2

 

See comment following Rule 2.03.

 

Rule 2.02 Approval of Prosecuting Attorney

 

            A complaint shall not be filed or process issued thereon without the written approval, endorsed on the complaint, of the prosecuting attorney authorized to prosecute the offense charged, unless such judge or judicial officer as may be authorized by law to issue process upon the offense certifies on the complaint that the prosecuting attorney is unavailable and the filing of the complaint and issuance of process thereon should not be delayed.

 

Comment—Rule 2

 

See comment following Rule 2.03.

 

Rule 2.03 Complaint Forms--Felony or Gross Misdemeanors

 

            For all complaints charging a felony or gross misdemeanor offense the prosecuting attorney or such judge or judicial officer authorized by law to issue process pursuant to Rule 2.02 shall use an appropriate form authorized and supplied by the State Court Administrator or a word processor-produced complaint form in compliance with the supplied form and approved by Information Systems Office, State Court Administration.  If for any reason such form is unavailable, failure to comply with this rule shall constitute harmless error under Rule 31.01.

 

Comment—Rule 2

 

            Under these rules (See Rules 10.01, 8.01, 17.01), the complaint, tab charge and indictment are the only accusatory pleadings by which a prosecution may be initiated and upon which it may be based.  The complaint will take the place of the information under existing practice (Minn. Stat. §§ 628.29-628.33 (1971)).

 

            By Rule 2.01 the complaint shall consist of a written signed statement of the essential facts constituting the offense charged.  This language is taken from F.R.Crim.P. 3.  (Present Minnesota statutory law (Minn. Stat. §§ 629.42, 633.03 (1971)) simply provides for the complaint of an offense to be reduced to writing, but does not specify what the complaint shall contain.)   The complaint shall otherwise conform to the provisions of Rules 17.02, 17.03.  Minn. Stat. §§ 487.25, subd. 3;  488A.10, subd. 3, and 488A.27, subd. 3 govern the procedure for the issuance of complaints in the County Courts, Hennepin County Municipal Court and St. Paul Municipal Court, respectively, but also do not specify what the complaint shall contain.

           

            Except as provided in Rules 11.06 and 15.08 authorizing the substitution of a new complaint to permit a plea to a misdemeanor or different offense, the complaint shall be sworn to before any judge or judicial officer of a district court, clerk or deputy clerk of court, or a notary public.

 

            Where the alleged offense is punishable only by a fine, as for a petty misdemeanor, the determination of probable cause may be made by a clerk or deputy clerk of court if court order authorizes this procedure.  The clerk or deputy clerk could also issue a summons in such a case under Rule 3.01, but is not permitted to issue a warrant.  Except for this requirement of authorization by court order in Rule 2.01, this provision is consistent with previous Minnesota law under Minn. Stat. §§ 629.42 (1971);  487.25, subd. 3 (1973) (governing county courts);  488A.10, subd. 3 (1971) (governing Hennepin County Municipal Court);  488A.27, subd. 3 (1971) (governing St. Paul Municipal Court);  and 488.17, subd. 3 (1971) (governing all other municipal courts).  This power may be constitutionally exercised by a detached and neutral clerk or deputy clerk under Shadwick v. City of Tampa, 407 U.S. 345 (1972).  See Rule 3.01 as to the issuance of a summons by a clerk or deputy clerk of court.

 

            Except as provided in Rules 6.01, subd. 3, 11.06 and 15.08, the probable cause statement shall be set forth separately in the complaint, and the complaint may be supplemented by supporting affidavits or sworn recorded testimony.  If affidavits, testimony, or other reports are used to supplement the complaint, it is still necessary to include in the complaint a statement of the facts establishing probable cause.  Under this rule it is permissible, for the complaint and any supporting affidavits to be sworn to before a clerk, deputy clerk or notary public.  The documents may then be submitted to the judge or judicial officer by any of the methods permitted under the rule and the law enforcement officer or other complainant need not personally appear before the issuing judge or judicial officer.  However, if sworn oral testimony is taken to supplement the complaint, it must be taken before the judge or judicial officer and cannot be taken before a clerk, deputy clerk or notary public.  If supplemental testimony is taken a note so stating shall be made on the face of the complaint so that an interested party or attorney examining the complaint will have notice that such testimony was taken.

 

            Rule 2.01 permits the judge or judicial officer to review the complaint and any supporting affidavits or supplementary testimony and to administer the oath by telephone, video equipment, or similar electronic device.  Any supplementary testimony so taken shall be recorded, transcribed and filed.  If the complaint is issued and a warrant is also necessary, they may be transmitted by facsimile transmission as permitted by Rule 33.05.  By this method, much time, travel and expense can be saved in those counties where a judge is not readily available to the complainant.

           

            References in the rules to clerks of court for the trial courts include court administrators.  See Minn. Stat. § 485.01 (1988) authorizing court administrators to perform any duties, functions and responsibilities required of clerks of court.

           

            Rules 11.06 and 15.08 authorizing the substitution of a new complaint to permit a plea to a misdemeanor or different offense do not require a showing of probable cause.  Rule 3.01 does not attempt to define probable cause for the purpose of obtaining a warrant of arrest or to prescribe the evidence that may be considered upon that issue.  That is determined by federal constitutional law under the Fourth Amendment.  (See e.g., State ex rel. Duhn v. Tahash, 275 Minn. 377, 147 N.W.2d 382 (1967);  State v. Burch, 284 Minn. 300, 170 N.W.2d 543 (1969).

 

            Rule 2.02 requires the prosecuting attorney's written approval of the filing of a complaint.  This is in accord with ABA Standards, Prosecution Function 3.4 (Approved Draft, 1968) that the decision to institute criminal proceedings shall be initially and primarily the responsibility of the prosecutor.  Similar provisions are contained in ALI Model Code of Pre-Arraignment Procedures, § 6.02 (T.D. § 1, 1966) and Wis. Stat. § 968.02(1), (3).

 

            The prosecuting attorneys referred to in Rule 2.02 are those authorized by law to prosecute the offense charged.  (See Minn. Stat. § 487.25, subd. 10 (1971) (county courts);  Minn. Stat. §§ 488A.10, subd. 11, 488A.101 (1971) (Municipal Court of Hennepin County); Minn. Stat. § 488A.27, subd. 11 (1971) (Municipal Court of St. Paul);  Minn. Stat. § 488A.41 (1971) (Municipal Court of Duluth);  Minn. Stat. § 488.17, subd. 9 (1971) (Municipal Courts in Ramsey and St. Louis Counties); Minn. Stat.§§ 8.01, 8.03 (1971) (Attorney General); Minn. Stat. § 388.05 (1971) (County Attorney).)

 

            If the prosecuting attorney is unavailable and it is necessary that the complaint be filed at once, the judge authorized to issue process on the complaint or the judicial officer with that power may permit the complaint to be filed and upon a finding of probable cause, issue process thereon.

 

            Rule 2.02 leaves to other laws the question of the available remedy when a local prosecutor refuses to approve a complaint.

           

            Because the documents supporting the statement of probable cause may contain irrelevant material, material that is injurious to innocent third persons, and material prejudicial to defendant's right to a fair trial, it is the recommended practice that a statement be drafted containing the facts establishing probable cause, in or with the complaint, and that irrelevant material, material injurious to innocent third persons and material prejudicial to defendant's right to a fair trial be omitted therefrom.

 

            Rule 2.03 requires the use by the prosecuting attorney, judge or judicial officer of the uniform complaint forms supplied by the State Court Administrator when charging a felony or gross misdemeanor offense.  All efforts shall be made to obtain and implement these forms, but in the event the form is unavailable at the time the offense is charged, failure to use the specific form is to constitute harmless error under Rule 31.01.

 

            Exemplary copies of the mandatory forms are contained in the general form section of these Rules.

 

Rule 3. Warrant or Summons upon Complaint

 

 Rule 3.01 Issuance

 

            If it appears from the facts set forth in writing in the complaint and any supporting affidavits or supplemental sworn testimony that there is probable cause to believe that an offense has been committed and that the defendant committed it, a summons or warrant shall be issued.  A summons shall be issued rather than a warrant unless it reasonably appears that there is a substantial likelihood that the defendant will fail to respond to a summons, or the defendant's whereabouts is not reasonably discoverable, or the arrest of the defendant is necessary to prevent imminent harm to the defendant or another.  If issued, a warrant for the arrest of the defendant shall be issued to any person authorized by law to execute it.

 

            The warrant or summons shall be issued by a judge or judicial officer of the district court.  Provided that when the offense is punishable by fine only, the clerk or deputy clerk of court may also issue the summons when authorized by court order.

 

            When the offense is punishable by fine only, in misdemeanor cases, a summons shall be issued in lieu of a warrant.

 

            The issuing officer shall issue a summons whenever requested to do so by the prosecuting attorney authorized to prosecute the offense charged in the complaint.

 

            If a defendant fails to appear in response to a summons, a warrant shall issue.

 

Comment—Rule 3

 

See comment following Rule 3.04.

 

Rule 3.02 Contents of Warrant or Summons

 

            Subd. 1. Warrant.   The warrant shall be signed by the issuing officer and shall contain the name of the defendant, or, if unknown, any name or description by which the defendant can be identified with reasonable certainty.  It shall describe the offense charged in the complaint, and the warrant and complaint may be combined in one form.  For all offenses, the amount of bail shall and other conditions of release may be set by the issuing officer and endorsed on the warrant.

 

            Subd. 2. Directions of Warrant.   The warrant shall direct that the defendant be brought promptly before the court that issued the warrant if it is in session.

 

            If the court specified is not in session, the warrant shall direct that the defendant be brought before a judge or judicial officer of such court, without unnecessary delay, and in any event not later than 36 hours after the arrest exclusive of the day of arrest, or as soon thereafter as such judge or judicial officer is available.

 

            Subd. 3. Summons.   The summons shall summon the defendant to appear at a stated time and place to answer the complaint before the court issuing it and shall be accompanied by a copy of the complaint.

 

Comment—Rule 3

 

 See comment following Rule 3.04.

 

Rule 3.03 Execution or Service of Warrant or Summons;  Certification

 

            Subd. 1. By Whom.   The warrant shall be executed by an officer authorized by law.  The summons may be served by any officer authorized to serve a warrant, and if served by mail, it may also be served by the clerk of the court from which it is issued.

 

            Subd. 2. Territorial Limits.   The warrant may be executed or the summons may be served at any place within the State except where prohibited by law.

 

            Subd. 3. Manner.   The warrant shall be executed by the arrest of the defendant.  If the offense charged is a misdemeanor the defendant shall not be arrested on Sunday or between the hours of 10:00 o'clock p.m. and 8:00 o'clock a.m. on any other day except by direction of the issuing officer, endorsed on the warrant when exigent circumstances exist or when the person named in the warrant is found on a public highway or street.  The officer need not have the warrant in possession at the time of the arrest, but shall inform the defendant of the existence of the warrant and of the charge.

 

            The summons shall be served on an individual defendant by delivering a copy to the defendant personally or by leaving it at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by mailing it to the defendant's last known address.  A summons directed to a corporation shall be issued and served in the manner prescribed by law for service of summons on corporations in civil actions or by mail addressed to the corporation at its principal place of business or to an agent designated by the corporation to receive service of process.

 

            Subd. 4. Certification;  Unexecuted Warrant or Summons.   The officer executing the warrant shall certify the execution thereof to the court before which the defendant is brought.

 

            On or before the date set for appearance the officer or clerk of court to whom a summons was delivered for service shall certify the service thereof to the court before which the defendant was summoned to appear.

           

            At the request of the prosecuting attorney made at any time while the complaint is pending, a warrant returned unexecuted or a summons returned unserved or a duplicate thereof may be delivered by the issuing officer to any authorized officer or person for execution or service.