The 36- and 48-Hour Rules: How Long Can You Be Kept in Jail After an Arrest?

One of the first questions people ask after they are taken into custody is how long they can be kept in jail. The answer depends on several factors, including:

• The time and date a person is taken into custody
• Whether the arrest was completed with or without a warrant
• Whether the individual is an adult or a juvenile

The 36-Hour Rule is found in Minnesota Rule of Criminal Procedure 4.02, subdivision 5, which states that a person in custody “…shall be brought before such judge or judicial officer without unnecessary delay, and in any event, not more than 36 hours after the arrest, exclusive of the day of arrest, Sundays, and legal holidays, or as soon thereafter as such judge or judicial officer is available.” What this means is that if you are arrested, you cannot legally be held for longer than 36 hours without appearing in front of the court. However, specific days are not included in the 36 hours, so the actual period of time in custody could be longer.

The days not included in the 36-Hour Rule are Sundays, legal holidays, and the day of the arrest. This means that if you are arrested on a Friday at noon, you can remain in custody under this Rule until Monday at noon because both Friday (the day of the arrest) and Sunday are not included in the time frame. However, if Monday were a holiday, the 36-hour period would be extended to Tuesday at noon.

The Rule is applied differently depending on the situation. For juveniles, the Rule also excludes Saturdays from inclusion in the 36-hour period, which means that juveniles can be held longer. If the arresting officers have a warrant, the 36-Hour Period is calculated from the time of the arrest, minus the day of the arrest; Sundays and legal holidays are counted toward the 36 hours if the arrest occurred with a warrant.

The 48-Hour Rule comes from the Supreme Court’s ruling in County of Riverside v. McLaughlin. It provides that when a person, whether adult or juvenile, is arrested without a warrant, a probable cause determination must be made without unreasonable delay and cannot occur more than 48 hours after arrest. What this means is that the Court must determine whether there was probable cause for the arrest within 48 hours of the arrest. The time period for the 48 hours starts immediately at the time of the arrest.

For example, if a person were arrested at noon on Friday without a warrant, Sunday at noon is the longest he or she could be held under the 48-Hour Rule without authorization for continued detention by a judge. Release would occur Sunday even though the 36-Hour Rule discussed above would not have expired at this time. Therefore, the maximum time a person can be held in custody is the lesser time under the 36- and 48-Hour Rules if there is no warrant and no judicial determination made for probable cause and continued detention.

Experienced defense attorneys like ourselves can help you navigate the judicial system to ensure the best outcome for your case. Please contact us if you have any questions about the 36- and 48-Hour Rules or with any other questions you may have about your arrest.