Courts in California do not wait for any person since they have a massive caseload and cannot postpone court hearings without creating a problem. To deter defendants from missing their scheduled court appearance, California makes it an offense tofail to appear in court. The crime carries jail time, fines, additional penalties, and a bench warrant. These penalties can occur concurrently with the penalties you received for your underlying criminal charges. If you have been charged with failure to appear, you should retain skilled legal representation to improve your chances of obtaining the most favorable case outcome.
A Brief Overview of Failure to Appear
Failure to appear in court means missing a scheduled court hearing.
Generally, it would help if you lawfully appeared in court when:
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You are subject to or receive a subpoena
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You promise to attend court in writing
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A judge orders you back to the court for criminal proceedings
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You are notified to show up in court
Defendants give written promises to attend court hearings after their release from police custody on their own recognizance.
When it comes to subpoenas, they apply to witnesses in court trials and hearings. A witness will obtain a subpoena notifying them that they should either:
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Bring specific documents to the court
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Show up in court to testify in a court hearing
Some of the instances the judge can order an individual back to a courthouse include:
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After the accused pleads guilty to criminal charges
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The judge orders the person to court for their sentencing hearing
Penalties and Consequences for FTA
Before convicting you of failure to appear, the prosecutor must prove the following elements of the crime beyond any reasonable doubt:
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You were charged with either a felony or a misdemeanor
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You were released from police custody on your own recognizance
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You intentionally failed to attend your scheduled court hearing or, as ordered
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The FTA was on purpose or with the intent of evading the court process
Failing to appear in court constitutes proof of the willingness not to attend. It is not a must that you intend to violate the law.
It is legally presumed that you planned to evade your court process if you deliberately failed to show up within fourteen days of the scheduled court appearance.
The consequences and penalties of FTA depend mainly on the statute you are charged with. Common statutes in California include:
PC 1320
The consequences of failure to appear under Penal Code Section 1320 PC depend on the crime you were initially convicted of or charged with.
If found guilty of or prosecuted for a misdemeanor, the FTA is a misdemeanor carrying six months in county jail. On the other hand, if sentenced for a California felony, the failure to appear is a felony that attracts three years in state prison or jail.
PC 1320.5
Failing to attend a court hearing per Penal Code Section 1320.5 is a California felony. The offense carries the following penalties:
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A maximum of three years in county jail or state prison
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$10,000 in fines
PC 853.7
Failure to appear is a California misdemeanor if prosecuted per Penal Code Section 853.7 PC. The crime attracts the following penalties:
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One thousand dollars in fines
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A six-month county jail sentence
Vehicle Code Section 40508
Failure to appear following a traffic ticket or citation is a California misdemeanor. It applies even when the underlying traffic violation is an infraction.
The statute subjects the defendant to one thousand dollars in fines and six months of incarceration.
Vehicle Code Section 40509.5
Vehicle Code Section 40509.5 allows additional penalties on motorists if they break VC 40508. The statute allows the California Department of Motor Vehicles (DMV) to hold the defendant’s driver’s license if they fail to show up in traffic court for their traffic citation or ticket.
The hold can:
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Remain effective until the driver pays the required fine or shows up in court, and
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Lead to suspension of the driver’s license.
Will FTA Have Adverse Immigration Consequences?
Typically, FTA does not carry negative immigration penalties.
For a defendant to be marked inadmissible in the United States or face deportation, the underlying crime should be:
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A crime of moral turpitude (CIMT)
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Domestic violence, aggravated felony
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Drug-related crimes, or
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Firearm crimes
That means if the crime for which you failed to appear includes one of these, then you are subject to immigration penalties.
Does FTA Affect a Defendant’s Firearm Rights?
A conviction resulting from FTA on its own does not affect the defendant’s firearm rights.
However, some felony and misdemeanor convictions will lead to the accused losing their entitlement to possess or purchase a gun. Additionally, some crimes carry a ten-year firearm ban.
Valid Excuses for Missing Your Court Hearing
Several excuses function as valid defenses to FTA charges. They include:
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The FTA was not intentional
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You did not intend to evade your court process
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The FTA happened because you did not sign an agreement to show up in court
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Was due to an emergency (It can be you suffered from a sudden medical condition or had to rush a loved one to the hospital)
The first three (3) excuses are effective because:
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They challenge the facts under the FTA statutes
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The prosecution team should establish these elements before convicting the defendant of an offense
Additional excuses can include:
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You did not know of the scheduled court hearing because the court mailed it to the wrong address
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You wrote an inaccurate date
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You were in police custody on a different matter
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You did not have the means to go to the court and were unable to notify the court of the inability to show up
Please note that you cannot use the following as legal defenses to FTA charges:
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You did not want to attend the scheduled court hearing
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You did not come because you believe you are innocent
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You had other matters to take care of
Bench Warrant
If a person fails to show up in court, the judge can issue a bench warrant (BW) authorizing the police to apprehend them and return them to court. It is always true if the court orders a defendant to personally attend court, regardless of whether the accused has permitted their criminal defense lawyer to represent them in their absence.
After you are in court, the judge can either detain you or release you with a warning, depending on:
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The circumstances that resulted in your warrant
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Whether you are a flight risk
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Your criminal history
If a defendant fails to attend their arraignment hearing, the arresting police officer should take them to the judge who issued the warrant. Nonetheless, upon the accused’s request, the law enforcer can take them before any judge in the county where they were arrested for setting the bail amount.
If you skip your sentencing hearing, you should appear before the judge who issued the warrant.
Generally, jurors and witnesses are subject to different regulations than accused people. If a jury member or witness fails to show up in court regarding a summons or subpoena, the judge will issue an FTA notice before issuing their bench warrant for the arrest. Nevertheless, suppose the judge believes that urgency requires the immediate presence of the witness or jurors is material to a criminal case. In that case, the judge can first issue a bench warrant instead of an FTA notice.
Like an arrest warrant, the police should serve a bench warrant within a reasonable time following its issuance. Otherwise, the law enforcers will violate your entitlement to a speedy trial, and you have a right to a case dismissal.
The police can serve a felony bench warrant at any time. On the contrary, law enforcers can only serve a misdemeanor warrant between 6 AM and 10 PM absent good cause.
The legal phrase “good cause” means a factual basis for believing that the nighttime intrusion is justified based on urgent circumstances. For instance, a judge can allow law enforcers to serve a bench warrant at the wee hours of the night if you have many outstanding warrants and have repeatedly disobeyed the California court process.
Bail and Arrest Issues As Far as Bench Warrants are Concerned
If a defendant has not posted bail yet and law enforcers believe that the court should raise the bail amount, they can request the court to increase it. It can occur if, for instance, you are charged with making criminal threats under PC 422, and the police do not believe that the set bail amount is enough to defend the alleged victim.
If the law enforcers convince the court to raise the amount in your presence, you will be detained until you post your new bail. If the court increases the bail while you are away, it will issue a bench warrant for the arrest.
If a defendant has posted their bail and they skip bail, the court will forfeit the bail and issue a bench warrant for the accused’s arrest.
How California Courts Enter the Bench Warrant in its System
Once the court issues the bench warrant, the court clerk orders the relevant authority to enter the warrant into the National Crime Information Center (NCIC).
If the appropriate authority fails to enter the warrant into their system, and the failure:
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stops your bail bond agent from returning you to police custody,
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stops the arrest, or
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leads to any release from police custody,
the judge should set aside your forfeiture and then exonerate your bail bond.
What Occurs If You Go to the Court?
If you go to the court instead of waiting to be arrested is the least embarrassing and most effective way to quash a bench warrant.
However, ensure your criminal defense attorney accompanies you. The judge might not trust you even with innocent and valid excuses for the FTA.
The attorney knows the effective steps, evidence, and arguments to use to persuade the judge to:
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Release the defendant on a lowered bail or own recognizance instead of incarceration, and
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Recall and quash the bench warrant
Some of the arguments your skilled warrant attorney can present include:
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You adhered to your probation terms and did not know that you are obligated to offer evidence to the court
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You did not know of the filed criminal charges or mistakenly thought the court had dismissed your charges
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While you bear the same name as the individual on the bench warrant, you are a victim of mistaken identity
How Long Does a BW Last?
California bench warrants do not expire. They are neither removed nor deleted after some time. Instead, they remain effective until:
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The individual named in it dies or is apprehended
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The judge recalls the warrant and clears it
If bench warrants expired, it would encourage dishonest and bad conduct. Defendants with active warrants would spend time lying or avoiding the court and later escape arrest.
Crimes Related to FTA
Discussed below are some of the crimes charged alongside or instead of FTA:
Violating a Restraining Order (Penal Code 273.6)
Under Penal Code 273.6, breaking the terms and conditions of a restraining order is an offense.
The crime is a misdemeanor punishable by a maximum of a year in county jail. If the offense involves violence, you will face a felony with three years of incarceration.
Contempt of Court
PC 166 bans contempt of court. Contempt of court can include:
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Refusing to be sworn in as a witness.
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Disobeying court orders.
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Being disruptive while court is in session.
Violation of PC 166 is a misdemeanor that carries up to one thousand dollars in fine and six months in county jail. In some cases, the judge can impose community service in place of fines.
Expunging a PC 1320 Conviction
Expungement is a post-conviction relief that releases the defendant from all disabilities and consequences of a conviction.
You are eligible to expunge the conviction provided you:
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Completed probation
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Are not currently:
- Charged with a crime
- Serving a sentence for a crime
- On probation for a crime
As far as expungement is concerned, completing probation means:
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Completing your probation terms and conditions
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Attending all scheduled court hearings
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You did not commit another crime while on probation
The California expungement process starts with filing a petition with the court. You can bring your petition in person, using a probation officer, or by your criminal defense lawyer.
Then the judge can either:
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Allow you to withdraw your plea of guilty or no contest and enter a plea of not guilty
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If you have been found guilty after a plea of not guilty, set aside your verdict of guilty
In either case, the judge will dismiss the accusations against you. Some of the benefits of expungement include:
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It makes it easier to acquire state professional licenses
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A potential employer cannot discriminate against you based on your expunged conviction
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An expunged conviction cannot be used to impeach your credibility as a witness in court
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In some cases, it helps you avoid immigration consequences like deportation
However, your expungement will not:
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Overturn your driver’s license revocation or suspension
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Restore your firearm rights
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End the obligation to register as a sex offender per PC 290
Also, your expunged conviction can still be considered a previous conviction when enhancing your sentencing.
Requesting a Continuance to Avoid Skipping Your Court Hearing
If a person wants to reschedule their court date, they should request a continuance (postponement).
To request the continuance at least ten days before the trial:
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Bring a request to postpone the trial (Form SC-150)
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Submit a letter to the court discussing why they require a change of the court date
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Pay a filing fee of $10
Remember to give or mail copies of the form to all parties named in your claim.
If the trial should happen in less than ten days:
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Take a filled Form SC-150 to the clerk’s office and request them to attach it to the file. Alternatively, attend the trial and ask the court for a continuance.
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Ensure your letter has reasonable reasons for filing the request late.
After sending your continuance request, the court will mail you an Order on Request to Postpone Trial (Form SC-152) indicating its decision on the request. They will also send a notice to all involved parties. If the judge reschedules the trial date, they will give you your new date.
If the judge fails to postpone your trial, the court hearing will be on the scheduled date. They will notify you why they denied your request.
If you fail to hear from the court, attend your scheduled court hearing.
Find Competent and Experienced Criminal Defense Attorney Near Me
Life happens, and appointments are forgotten and missed. Probably, you have been detained in another jurisdiction, were not adequately notified of the court hearing, or had an emergency. Whatever your reason for the FTA, California courts take the matter seriously and can result in penalties and consequences like a bench warrant, additional charges, and fines. Fortunately, it is not too late to handle the matter if you have not been arrested.
The skilled legal team at Leah Legal can work with the judge to explain why you missed your scheduled court hearing, reschedule a new date, and have your BW cleared. For many years we have represented thousands of defendants in Van Nuys and can help you fight for your rights and freedom. Do not wait to act. Please contact us at 818-484-1100 while you still have available options.