Our California bench warrant attorneys can assist you throughout the state, including Los Angeles, San Francisco, Long Beach, Orange County, Riverside and San Bernardino. Also see our related pages on clearing California arrest warrants, challenging police search warrants, the crime of failure to appear, and posting bail in California.
Bench warrants (sometimes referred to as "body attachments") are the most common type of warrant issued in California. They refer to a warrant that is issued from "the bench", which means, the judge.
Unlike a California arrest warrant, a bench warrant isn't issued based on suspected criminal activity. A bench warrant is most typically issued for:
- failing to appear for court,
- failing to pay a fine, and/or
- failing to obey any other court order.
Doing any of the above is considered "contempt of court"1 and subjects you to a bench warrant and a possible:
- a probation violation,
- a county jail or California state prison sentence,
- enhanced fines, and/or
- a California drivers license suspension.2
(Note that these can also be charged as additional crimes under Vehicle Code 40508 VC and Penal Code 1320 PC).
A judge can also issue a bench warrant if you are indicted by a California grand jury. If this is the case, and you are not in custody when the indictment is received, the judge will issue a bench warrant for your arrest.3
In order to understand better when and why bench warrants are issued and, more importantly how to get one cleared, our Los Angeles criminal attorneys will explain the following topics:
If, after reading this article, you would like more information, we invite you to contact us.
Simply put, "recalling and quashing" a bench warrant means having it cleared from the judicial system. The bottom line is that you (or sometimes your attorney) must appear in court in order to complete the process.
- fail to appear for a court appearance, or
- fail to pay a fine in connection with a misdemeanor offense,
your California warrants attorney may be able to have the warrant recalled and quashed in your absence.
If, however, you fail to obey a court order that arises out of a felony case, you must be present to clear your warrant.
A California bench warrant authorizes law enforcement officers to arrest you and bring you directly to court.4 Once you are in court, the judge will either 1) release you with a warning, or 2) incarcerate you, depending on:
- your criminal history,
- the circumstances that led to the warrant, and
- your flight risk.
If you fail to appear for your arraignment, the arresting officer will bring you before the judge who issued your warrant. However, upon your request, the officer could alternatively bring you before any judge in the issuing county (or in the county where you were arrested) for the purpose of setting bail.5
If you fail to appear for your sentencing, you must appear before the judge who issued your warrant.6 This remains the case regardless of where you were arrested.7
A California bench warrant, like an arrest warrant, must be served within a reasonable time after its issuance. If it isn't -- and your right to a speedy trial has been violated -- you may be entitled to a dismissal.8
A bench warrant is also served in the same manner as an arrest warrant.9 This means that felony bench warrants may be served at any time. Misdemeanor warrants, however, may only be executed between 6 a.m. and 10 p.m. absent "good cause".10
Good cause means that there is a factual basis for believing that the nighttime intrusion would be justified based on exigent circumstances.11 If, for example, you have several outstanding warrants and repeatedly disobey the court process, a judge may permit officers to serve your bench warrant in the middle of the night.12
You "fail to appear" (FTA) if you don't appear in court when you have been previously ordered to do so, either by the judge or in a notice to appear.13
There are a variety of laws that relate to FTAs, depending on
- whether you have failed to appear in response to a written or verbal promise to appear ,
- whether you have posted bail14,
- whether your FTA was in response to a vehicle code violation15, and
- whether your FTA was in conjunction with a misdemeanor or felony charge16.
You may be charged with a California FTA in a variety of situations. Some examples include (but are not limited to) failing to appear:
- for a court proceeding (such as your arraignment, a pre-trial hearing, or sentencing following a plea bargain or trial), if you were ordered to personally appear
- for a progress report while on probation,
- to show proof that you completed your court-ordered California DUI school or domestic violence class,
- for a jury summons, or
- for trial (if you were personally ordered to appear by the judge) because you are (1) the defendant17, (2) a witness in the case18, or (3) a juror on the case19.
If you fail to appear for any scheduled court date, the judge may issue a California bench warrant for your arrest. This is always the case if the judge specifically orders you to appear personally, even if you grant your attorney the authority to represent you in your absence.20
Witnesses and jurors are subject to different rules than defendants. If you are a witness or juror and fail to appear in response to a subpoena or summons, the court will issue you a "failure to appear" notice before it issues a bench warrant for your arrest.21
However, if the court believes that you are material to the case or that urgency dictates your immediate presence, it may first issue a bench warrant in lieu of the FTA "notice".22
Penalties and Punishment for failure to appear in California courts
If you willfully fail to appear on a scheduled court date for a misdemeanor case after you were released on your own recognizance (otherwise known as an "O.R." release), the prosecution will additionally charge you with "failure to appear" as a misdemeanor.
Before you can be convicted of this offense, the prosecutor must prove that you intended to "evade the process of the court". Evidence of your intent may be established if you failed to appear within 14 days of your appearance date. Under California Penal Code 1320, if convicted, you face a maximum $1,000 fine and a maximum six-month county jail sentence.23
If you are released O.R. for a felony case (and the same facts apply), you will be additionally charged with felony "failure to appear". Under California Penal Code 1320, if convicted, you face a minimum $5,000 fine and a county jail or state prison sentence.24
It should be noted that if your FTA involves a felony case where you posted bail, the maximum fine increases from $5,000 to $10,000.25
California Bench Warrants for failure to pay a fine
The court will also issue a bench warrant for your arrest if you willfully fail to pay court fines or ordered restitution. However, the judge cannot penalize you for failing to pay restitution or a fine if you do not have the financial ability to pay, as long as you comply with all other court orders.26
If your financial situation changes...and will force you to disobey a court order...it is advisable that you contact an attorney before you disregard the order. An experienced lawyer may be able to schedule a hearing date with the court before a warrant is issued.
California Bench Warrants for disobeying a court's orders
The court may also issue a California bench warrant if you fail to obey its orders. This is most typically the case following a criminal proceeding after you have been placed on probation. If, for example, you do not complete all of your court-ordered classes, community service, or report for drug-testing if ordered to do so, you will be charged with a probation violation.
When the court becomes aware of a probation violation (which, in essence, is a failure to obey a court's order), it may issue a bench warrant to address the situation.27
If you haven't yet posted bail...and the arresting or investigating officer believes that your bail should be increased...he/she may petition the court for a bail increase.28 This may happen if, for example, you were arrested for making Penal Code 422 criminal threats and the officer doesn't believe that your bail is sufficient to protect the person whom you allegedly threatened.
If the officer convinces the judge to raise your bail while you are present in court, you will immediately be incarcerated until the new bail amount is posted. If the judge orders an increased bail in your absence, the judge will issue a bench warrant for your arrest.29
If you have posted bail, and you subsequently fail to appear, the judge will most likely forfeit your bail and issue a bench warrant for your arrest.30
How the court enters the California bench warrant "in the system"
That said, the court must still follow certain rules. After the judge issues the warrant, the clerk directs the appropriate agency to enter your warrant into the National Crime Information Center "NCIC". This is the law for all cases involving bail bonds.
If the agency fails to enter your warrant into the NCIC and that failure
- prevents the bondsman from surrendering you into custody,
- prevents your arrest, or
- results in your subsequent release from custody,
the court must set aside the forfeiture and "exonerate" or cancel your bond.31
For example: Let's say that following your felony arrest, you post bail through a bail bondsman. You then fail to appear for your arraignment and the court issues a bench warrant for your arrest. Your bondsman finds you and detains you until the police arrive. However, the police can't find your warrant in the NCIC and subsequently let you go.
The fact that your warrant wasn't entered into the system resulted in your release. As a result, the court would exonerate your bond and set aside the forfeiture.32
Going directly to court...instead of being "picked up" on a warrant...is the most efficient (and least embarrassing) way to clear your California bench warrant. There is, however, a very important caveat that goes along with this statement.
Unless you are prepared to go straight from the court into custody...which is a very real possibility...it is advisable to take your California criminal defense lawyer with you.
We say this because even if you have an innocent, legitimate excuse for disobeying the court, the judge will most likely distrust your explanation. From the judge's perspective...he/she has "heard it all before".
Your California criminal defense lawyer knows the most effective arguments, evidence, and steps to take to convince the judge (1) to recall and quash your warrant, and (2) to release you O.R. or with a reduced bail in lieu of being taken into custody.
Examples of arguments that your warrants lawyer could present on your behalf include (but are not limited to):
- the fact that you never received a notice to appear (it was mailed to an old address, for example),
- the fact that you complied with and completed all of your probation requirements and simply didn't realize that you were supposed to provide proof to the court,
- that you were under the mistaken impression that your charges had been dismissed or that you were unaware that the case was even filed, and, of course,
- that although you share the same name with the person in the warrant, you were wrongly arrested based on mistaken identity.
Call us for help...
If you or a loved one has been issued a bench warrant and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For information on Nevada bench warrants, go to our page on Nevada bench warrants.
1California Penal Code 166 -- Contempt of court; conduct constituting ("...every person guilty of any contempt of court, of any of the following kinds, is guilty of a misdemeanor...(4) Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by any court, including orders pending trial. (5) Resistance willfully offered by any person to the lawful order or process of any court.")
2California Vehicle Code 13365 states that a willful failure to appear or pay a fine on an infraction will result in a mandatory license suspension if the person has a previous willful failure. California Vehicle Code 13365.5 states that a willful failure to appear or obey a court order on a misdemeanor or felony will result in a mandatory license suspension even for a first offense.
3See California Penal Code sections 945 and 979-984. Section 945 ("Proceedings when defendant is not in custody. When an indictment is found against a defendant not in custody, the same proceedings must be had as are prescribed in Sections 979 to 984, inclusive, against a defendant who fails to appear for arraignment.")
Section 979 ("If the defendant has been discharged on bail or has deposited money or other property instead thereof, and does not appear to be arraigned when his personal presence is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money or other property deposited, may order the issuance of a bench warrant for his arrest.")
Section 980 ("(a) At any time after the order for a bench warrant is made, whether the court is sitting or not, the clerk may issue a bench warrant to one or more counties. (b) The clerk shall require the appropriate agency to enter each bench warrant issued on a private surety-bonded felony case into the national warrant system (National Crime Information Center (NCIC)). If the appropriate agency fails to enter the bench warrant into the national warrant system (NCIC), and the court finds that this failure prevented the surety or bond agent from surrendering the fugitive into custody, prevented the fugitive from being arrested or taken into custody, or resulted in the fugitive's subsequent release from custody, the court having jurisdiction over the bail shall, upon petition, set aside the forfeiture of the bond and declare all liability on the bail bond to be exonerated.")
Sections 981-982 deal with the form and language of the warrant.
Section 983 ("The bench warrant may be served in any county in the same manner as a warrant of arrest.")
Section 984 ("Proceeding on giving bail in another county. If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings must be had thereon.")
4See California Penal Code sections 978.5-981. 978.5 ("(a) A bench warrant of arrest may be issued whenever a defendant fails to appear in court as required by law including, but not limited to, the following situations: (1) If the defendant is ordered by a judge or magistrate to personally appear in court at a specific time and place. (2) If the defendant is released from custody on bail and is ordered by a judge or magistrate, or other person authorized to accept bail, to personally appear in court at a specific time and place. (3) If the defendant is released from custody on his own recognizance and promises to personally appear in court at a specific time and place. (4) If the defendant is released from custody or arrest upon citation by a peace officer or other person authorized to issue citations and the defendant has signed a promise to personally appear in court at a specific time and place. (5) If a defendant is authorized to appear by counsel and the court or magistrate orders that the defendant personally appear in court at a specific time and place. (6) If an information or indictment has been filed in the superior court and the court has fixed the date and place for the defendant personally to appear for arraignment. (b) The bench warrant may be served in any county in the same manner as a warrant of arrest.")
Sections 978-981 may be found above.
5See California Penal Code sections 981-982, 984, and 1284. Sections 981, 982, and 984 may be found above. Section 1284 ("When the offense charged is not punishable with death, the officer serving the bench warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose of giving bail. If the defendant appears before such magistrate without the bench warrant having been served upon him, the magistrate shall deliver him into the custody of the sheriff for the purpose of immediate booking and the recording of identification data, whereupon the sheriff shall deliver the defendant back before the magistrate for the purpose of giving bail.")
6California Penal Code 1197 contains a blank copy of a bench warrant that may be issued if a defendant fails to appear for judgment. In it, it specifically states that the arresting officer is commanded to arrest the defendant and to bring him/her directly to the issuing judge.
7California Penal Code 1199 specifically applies to warrants that are served when the defendant fails to appear for judgment and states ("Whether the bench warrant is served in the county in which it was issued or in another county, the officer must arrest the defendant and bring him before the court, or deliver him to any peace officer of the county from which the warrant issued, who must bring him before said court according to the command thereof.")
8People v. Mitchell, (1972) 8 Cal.3d 164, 167 ("...Marin County made no effort to bring defendant to trial for 13 months after issuance of the bench warrant against him; that defendant reasonably relied on assurances given to him that the Marin County charges had been dismissed; that he was prejudiced by the delay in being brought to trial; and that the People failed to show good cause for the delay.")
9California Penal Code 978.5(b) -- Bench warrant of arrest; issuance; service ("(b) The bench warrant may be served in any county in the same manner as a warrant of arrest".)
10California Penal Code 840 -- Time of arrest; felony; misdemeanor ("An arrest for the commission of a felony may be made on any day and at any time of the day or night. An arrest for the commission of a misdemeanor or an infraction cannot be made between the hours of 10 o'clock p.m. of any day and 6 o'clock a.m. of the succeeding day, unless: (1) The arrest is made without a warrant pursuant to [California Penal Code] Section 836 or 837. (2) The arrest is made in a public place. (3) The arrest is made when the person is in custody pursuant to another lawful arrest. (4) The arrest is made pursuant to a warrant which, for good cause shown, directs that it may be served at any time of the day or night.")
11People v. Ramirez, (1988) 202 Cal.App.3d 425, 427 ("In the related context of nighttime search warrants, our Supreme Court recently defined the good cause rule as requiring "'only some factual basis for a prudent conclusion that the greater intrusiveness of a nighttime search is justified by the exigencies of the situation. ...')
12See same. In Ramirez, the defendant had 11 outstanding warrants which, the court held, justified the nighttime arrest in his home.
13California Penal Code 853.7 -- Violation of promise to appear as misdemeanor ("Any person who willfully violates his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the charge upon which he or she was originally arrested.")
14California Penal Code 853.8 -- Warrant for arrest based on failure to appear ("When a person signs a written promise to appear at the time and place specified in the written promise to appear and has not posted bail as provided in [California Penal Code] Section 853.6, the magistrate shall issue and have delivered for execution a warrant for his or her arrest within 20 days after his or her failure to appear as promised or within 20 days after his or her failure to appear after a lawfully granted continuance of his or her promise to appear.") See also endnotes 23-25 below.
15California Vehicle Code 40508(a) -- Promise to appear; fine payment; court order condition; violations; driver's license impoundment ("(a) A person willfully violating his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court or before a person authorized to receive a deposit of bail is guilty of a misdemeanor regardless of the disposition of the charge upon which he or she was originally arrested.")
Used in conjunction with California Jury Instructions (Criminal) 16.880 -- Violation of promise to appear ("In order to prove this crime, each of the following elements must be proved: (1) a person, having been cited for a violation of the Vehicle Code, executed a written promise to appear in court or before a person authorized to receive a deposit of bail; and (2) that person willfully failed to appear [at a lawfully granted continuance of [his] [her] promise to appear] in court or before a person authorized to receive a deposit of bail.")
16See endnotes 23-35 below.
17See California Penal Code 978.5 above. See also California Penal Code 1043(e) -- Presence of defendant; felony cases; misdemeanor cases; procedure ("(e) (e) If the defendant in a misdemeanor case fails to appear in person at the time set for trial or during the course of trial, the court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized his counsel to proceed in his absence pursuant to subdivision (a) of Penal Code Section 977. If there is no authorization pursuant to subdivision (a) of Section 977 and if the defendant fails to appear in person at the time set for trial or during the course of trial, the court, in its discretion, may...(3) Issue a bench warrant.")
18California Code of Civil Procedure 1993 -- Warrant for failure to appear ("...the court may issue a warrant for the arrest of a witness who failed to appear pursuant to a subpoena or a person who failed to appear pursuant to a court order.")
19California Code of Civil Procedure 1209 -- Acts of omissions constituting; stay of sentence pending appeal ("(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court...10. When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court...")
20See California Penal Code 978.5 in endnote 4 above.
21California Code of Civil Procedure 1209 -- Acts of omissions constituting; stay of sentence pending appeal ("(a)(1) As an alternative to issuing a warrant for contempt pursuant to paragraph (5) or (9) of subdivision (a) of [California Penal Code] Section 1209, the court may issue a warrant for the arrest of a witness who failed to appear pursuant to a subpoena or a person who failed to appear pursuant to a court order... (2) Before issuing a warrant for a failure to appear pursuant to a subpoena pursuant to this section, the court shall issue a "failure to appear" notice informing the person subject to the subpoena that a failure to appear in response to the notice may result in the issuance of a warrant.")
22See same ("This notice requirement may be omitted only upon a showing that the appearance of the person subject to the subpoena is material to the case and that urgency dictates the person's immediate appearance.")
23California Penal Code 1320 - Failure to appear after release upon own recognizance; violation; presumption; penalty ("(a) Every person who is charged with or convicted of the commission of a misdemeanor who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a misdemeanor. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.")
24See same ("(b) Every person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony, and upon conviction shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both that fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.")
25California Penal Code 1320.5 -- Release on bail; willful failure to appear ("Every person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony. Upon a conviction under this section, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both the fine and imprisonment. Willful failure to appear within 14 days of the date assigned for appearance may be found to have been for the purpose of evading the process of the court.")
26See same ("However, probation shall not be revoked for failure of a person to make restitution pursuant to [California Penal Code] Section 1203.04 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay.") See also Bearden v. Georgia, (1983) 461 U.S. 660, 668 ("If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection...But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically...")
27California Penal Code 1203.2 -- Rearrest of probationer or person released on conditional sentence or summary probation not under care of probation officer... ("(a) At any time during the probationary period of a person released on probation under the care of a probation officer pursuant to this chapter, or of a person released on conditional sentence or summary probation not under the care of a probation officer, if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation...")
28California Penal Code 1269(c) -- Increase or reduction of bail in schedule; declaration by peace officer, application by defendant; determination by magistrate ("If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to assure defendant's appearance or to assure the protection of a victim, or family member of a victim, of domestic violence, the peace officer shall prepare a declaration under penalty of perjury setting forth the facts and circumstances in support of his or her belief and file it with a magistrate, as defined in Section 808, or his or her commissioner, in the county in which the offense is alleged to have been committed or having personal jurisdiction over the defendant, requesting an order setting a higher bail.")
29California Penal Code 986 -- Increased bail on felony charge; commitment of defendant or issuance of bench warrant ("If the defendant is present when the order is made, he must be forthwith committed. If he is not present, a bench warrant must be issued and proceeded upon in the manner provided in this Chapter.")
30Authority for forfeiting bail and issuing a bench warrant for a failure to appear may be found in the following sections, depending on the specific court proceeding from which the defendant was absent: California Penal Code sections 978.5, 979, and 1195-1199.
31California Penal Code 980(b) -- Issuance of bench warrant; entry in national warrant system ("(b) The clerk shall require the appropriate agency to enter each bench warrant issued on a private surety-bonded felony case into the national warrant system (National Crime Information Center (NCIC)). If the appropriate agency fails to enter the bench warrant into the national warrant system (NCIC), and the court finds that this failure prevented the surety or bond agent from surrendering the fugitive into custody, prevented the fugitive from being arrested or taken into custody, or resulted in the fugitive's subsequent release from custody, the court having jurisdiction over the bail shall, upon petition, set aside the forfeiture of the bond and declare all liability on the bail bond to be exonerated.") See also California Penal Code 1196 which states the same but relates to judgment and execution.
32People v. American Contractors Indem. Co., (1999) 76 Cal.App.4th 1408 ("The evidence was that the bond agent recognized defendant, detained him, and called 911. Police officers arrived, defendant was handcuffed, and the bond agent produced a filed containing documentation of the bail bond and photographs of defendant. A warrant check was run but it revealed no warrant for defendant's arrest, and it was for that reason that the officers did not arrest defendant. They then advised the bail agent to let him go and make sure to get a warrant entered into the system. Furthermore, the district attorney conceded that the lack of a warrant in the warrants system prevented defendant's arrest... In sum we believe the application of the amended [California Penal Code] section 980, subdivision (b) to the record in this case requires that the forfeiture be set aside and the bond exonerated.