Should you be charged with any crime and are given a court date, you should honor the date. It does not matter whether the offense is a simple traffic violation or a more serious offense. Failure to appear in court is an offense punishable under the provisions of PC 1320.5.
Prosecutors must prove that you willfully failed to appear for you to be convicted. Conversely, your attorney could acknowledge that you failed to honor court proceedings. However, your actions were not deliberate, as is evident in situations where defendants had to attend to emergencies or were physically unable to appear due to travel restrictions. You can use several viable reasons in your defense.
Let us first address the crime under PC 1320.5.
When is It a Crime to Fail to Appear in Court
Court actions require individuals to appear before. The legal requirement does not only affect defendants in a case but witnesses and jurors as well. Here are a few ways a court will legally mandate your presence.
- You provide a written promise to appear — In most cases, written promises feature in releases from custody through own recognizance. Also known as personal recognizance are non-bail releases issued by a court satisfied that the defendant’s promise of honoring court dates is enough and does not require a surety to secure his/her release.
- You receive or are subject to a subpoena — Subpoenas are court orders targeting witnesses in a hearing or trial. Subpoenas require witnesses to:
- Appear in court and testify in the proceedings, or
- Appear in court and present documents pertinent to the court proceedings
- You are notified to appear in court — In the notifications, the courts specify the reasons for their order to have you appear in court. Some common examples of situations issue notifications to appear in court include:
- You are charged with a crime
- You are asked to report for jury duty
- You receive a traffic ticket and must show up in traffic court
- You are a plaintiff in a civil lawsuit, and the notification informs you of the lawsuit
- You are ordered back to court by a judge in a criminal proceeding — For example, a court finds a defendant guilty and requires the defendant to show up a few weeks later for sentencing in a sentencing hearing.
By their very nature, subpoena, notifications to appear in court, and court orders are particular. All detail the date and time you are expected to appear. While written promises are not date and time specific, they are commitments to show up at court scheduled dates and times. Therefore, it can be argued they provide specificity in this context.
What Prosecutors Must Prove
The DA is tasked with proving four elements in a failure to appear (FTA) case. He/she must establish that:
- You were released on your own recognizance (O.R. release)
- You were charged with a misdemeanor or a felony violation
- You willingly failed to appear on your scheduled or ordered court date
- Your failure to appear was with the intention or geared to evade the court process
A fundamental question many ask is, "How does the prosecution prove willingness?”
Failure to appear does not require intent to prove willingness. Simply not appearing in court when required demonstrates your willingness not to appear. The legal presumption is that failing to appear in court within 14 days of your scheduled court appearance date meant evading the court process.
Consequences of Failing to Appear
Failing to appear in court as required will result in a bench warrant or an FTA warrant for your arrest and additional charges being filed against you.
Note: Failure to appear offenses are defined in the following California Penal and Vehicle Codes:
- PC 1320
- PC 1320.5
- PC 853.7
- VC 40508
- VC 40509.5
a) FTA Warrant
An FTA warrant is a bench warrant issued by a judge for an individual’s arrest because the said individual failed to appear in court as required. This warrant authorizes law enforcement and police officers to arrest the individual and present him/her before a judge. The judge can either release the arrestee with a warning or place him/her in custody.
Bench warrants are different from arrest warrants. Arrest warrants are also issued by a judge giving police officers the authority to arrest a suspect. Notice arrest warrants are specific to suspects. That is because they are only issued against individuals suspected of committing a crime.
Bench warrants are issued in either two ways:
- After a declaration by an officer — Police officers will conduct investigations and when they believe they have sufficient evidence to proceed to trial, through the DA’s office, they will obtain an arrest warrant from a judge. Police investigations establish probable cause, that is, whether there is a reasonable belief you committed the crime.
- After a grand jury indictment — Grand juries are convened to determine if there is enough evidence to charge you with an offense. Should the jury establish there is enough probable cause that would make an individual reasonably conclude you committed the crime, the jury will indict you, and a judge will issue a warrant for your arrest.
Therefore, FTA warrants only follow after you fail to honor court appearances, while arrest warrants are issued following an investigation or criminal activity investigation.
b) Additional Charges
Once found guilty of failing to appear, you will receive penalties based on the underlying crime: the offense you were charged or convicted for.
Here is a detailed look at the additional changes and the likely penalties.
Penal Code 1320
Prosecutors decide whether to pursue misdemeanor or felony charges based on whether your underlying offense was a misdemeanor or a felony. You would face misdemeanor penalties if your underlying offense were a misdemeanor and felony penalties if the offense was a felony.
Should the DA pursue the failure to appear under PC 1320 as a misdemeanor, a conviction will result in misdemeanor penalties. You will likely spend up to six months in jail for the offense.
Should the DA pursue felony charges and secure a guilty verdict, you will be sentenced to up to three years in jail or prison.
Penal Code 1320.5
Individuals charged or convicted for felony violations, released from custody on bail, and evaded the court process by failing to appear as required are guilty of a felony offense.
The offense is punishable by three years in jail and a fine of up to $1,000. The judge can also send you to prison to serve out the three years.
Penal Code 853.7
It is a crime to fail to appear in court after committing to do so with a written promise. The DA must present the written promise to the jury. Additionally, the prosecution points out your failure to show up in court as detailed in the promise as willfulness, thus meeting the threshold required to find you guilty.
Convictions for PC 853.7 violations are misdemeanors. They are punishable by a jail sentence of up to six months and a fine not exceeding $1,000.
Vehicle Code 40508
VC 40508 makes it a misdemeanor offense to fail to appear in court for a traffic citation. All traffic citations are considered, including infractions.
Vehicle Code 40508 violations are punishable by six months in jail, a fine of up to $1,000, or both. Further, a conviction could result in losing your driving privileges for up to 30 days and a hold placed on your driver’s license per VC 40509.5.
Vehicle Code 40509.5
According to VC 40509.5, drivers should sign a written promise to appear in court upon receiving a traffic ticket. The written promise specifies the date and time the driver commits to appear. Failing to honor this commitment informs a court clerk’s decision to notify the DMV of your failure to appear. The DVM then places a hold on your driver’s license. It remains in effect until you appear in court and satisfy the accompanying demands.
Note: An arrest warrant could also be issued against you following a hold on your driver's license. Some of the circumstances that warrant arrests include:
- Not having a California-certified driver’s license, and
- When the underlying traffic offense is a misdemeanor or a felony
Impact of an FTA on Bail
If you were released on your own recognizance instead of posting bail or securing a bond, an FTA will likely result in an imposition of bail in your case over and above the additional charges the courts will uphold.
If you posted bail in your case, a failure to appear would result in your bail’s forfeiture. Further, if your bail was secured through a bond from a bail bond company, the forfeiture will result in the seizure of the collateral you signed over to the bond company. They sell the collateral to recover the sums forfeited by the court.
Additionally, any bail set in subsequent criminal proceedings will be increased significantly owing to your prior failure to appear.
Immigration Consequences of Failing to Appear
Whether a failure to appear conviction will impact an individual’s immigration status is a legitimate concern for non-citizens. However, in most situations, the offense does not adversely impact your immigration status.
Deportation requires the offense to be one of moral turpitude, a drug conviction, violent felony, firearm offense, or one involving domestic violence. Most PC 1320.5 violations do not meet this threshold. However, if the underlying offense meets the deportation threshold, you will likely be deemed inadmissible, deported to your country of origin, and denied re-entry to the US.
Defenses Applicable for Failing to Appear in Court
You can assert four arguments in your defense to challenge the FTA case. If satisfied with your reasons, the courts will dismiss the charges.
You Did Not Willfully Fail to Appear
While it is upon the prosecution to prove you willfully failed to appear, your attorney could demonstrate your actions as anything but willful or deliberate in your defense. There are several reasons he/she could use in asserting this defense. Here are a few examples.
- You wrote the wrong date.
- You were in custody for another matter unrelated to your current offense
- Your attorney communicated to you a wrong date
- You lacked the means to get to court and were also unable to communicate to the court your inability to attend
Once satisfied, the courts will dismiss the charges.
No Intent to Evade the Court Process
Recall that the DA must prove that your actions were intentional and geared to evade the court process. Therefore, you can argue you did not intend to fail to appear in court as a defense.
You will have to present evidence supporting this argument by showing your actions as a mistake or a consequence of your forgetfulness. Both lack intent pivotal in finding you guilty of failing to appear.
You Had an Emergency You Needed to Take Care of
Emergency cases can prevent you from showing up in court. However, the reasons you provide should be legitimate and verifiable. Only then will the court accept the situation as an emergency and enough to justify your absence in the court as required.
Some of the situations courts deem as emergencies include:
- You were a victim of a car crash
- You were diagnosed and admitted for a grave medical issue, or
- An immediate family member died
- You are a victim of a natural disaster such as a tornado, earthquake, hurricane, or wildfire.
Further, courts also consider situations where you had to attend to an emergency your friend or close family member faced.
While emergencies are justifiable reasons for failure to appear, it is best to inform your attorney of your situation and have a friend or a close family member appear on your behalf.
No Signed Agreement
The prosecution must present the signed promissory note demonstrating your commitment to showing up in court as required. Therefore, a failure to produce it is grounds for a dismissal of your case.
Your attorney will assert that you did not sign any promise. Thus you are not bound to any commitment you did not agree to.
Note: There are some excuses you should never use should you fail to appear in court. You should never argue that:
- You failed to appear because you were innocent
- You did not feel like appearing in court
- You had a social engagement to attend
- You were too busy to make time
The above reasons are disrespectful to the judicial process and the judge. Presenting the above reasons only irritates the judge and will likely guarantee your conviction.
Further, you must appear remorseful or regretful in your failure to appear case. It is easy to assert that you did not appear on purpose and intended to skip the process in anger or protest. Doing so will only complicate your case and guarantee your conviction. Remain calm and follow your attorney’s lead.
What to Do When There is an Active Bench Warrant for Your Arrest
If there is a bench warrant for your arrest, the law allows you to have it removed. You can do so by attending a bench warrant hearing where you will seek the recall or quashing of the warrant. Recalls and quashing both clear the warrant from the judicial system.
Bench warrant hearings are the only avenues to clear the warrants from the system. Arrest warrants remain in effect until your demise. This means that courts, in most cases, do not drop the bench warrants on their own, nor do the warrants expire after some time.
Your attorney can appear on your behalf in the bench warrant hearing if:
- You failed to appear, and
- The court appearance related to a misdemeanor or a fine case
You must, however, personally appear in the hearing if the failure to appear relates to a felony case.
In the hearing, through your attorney, you will demonstrate to the judge that your failure to appear on the date stated was excusable and justifiable. The following best demonstrate your actions as justifiable and excusable.
- You were unaware your case was filed.
- You never received a notice to appear in court and/or
- You complied with all the requirements and conditions set by the court
Find a San Jose Criminal Defense Attorney Near Me
It could seem like a small matter when you fail to appear in court when required. However, a conviction will have an impact on your life. It is highly recommended to seek legal assistance from qualified and experienced attorneys. An experienced attorney helps you address the failure to appear, focusing on securing the best legal outcome. Further, he/she knows the ideal legal strategy suited for your case.
At California Criminal Lawyer Group, we endeavor to provide comprehensive and tailored legal solutions to individuals facing criminal prosecution in San Jose. Give our team a call at 408-622-0204 if you or a loved one is facing failure to appear charges.