Failure to appear in court on a misdemeanor – What can happen?

Posted on February 1, 2023

Failure to appear in court on a misdemeanor charge can lead to an FTA warrant, bail problems, fines, and additional criminal charges. The severity of the offense tends to depend on the underlying criminal charge.

The failure to appear has to be willful to be punishable, though. The court may excuse an absence if it was

• justified or
• accidental.

What is a failure to appear in court?

Failure to appear, or FTA, is the criminal offense of willfully not showing up at a mandatory court date.

You can have a mandatory court date for several reasons. Some of the most common include when you:

• sign a written promise to appear in court, often after being released on your own recognizance during the arraignment,
• are out of jail on bail pending trial or sentencing,
• are issued a subpoena or court order to appear in court for a criminal case, or
• are in court and are told to return to court at a future date by the judge.

In California, prosecutors have to prove 4 things to secure a conviction for failure to appear:

1. you were charged with, or convicted of, a crime in the state of California,
2. you were released from custody,
3. you willfully failed to appear at court at the time you were required to be present, and
4. you intended to evade the court process by failing to appear.¹

What are the consequences if the court date was for a misdemeanor?

If you are facing a misdemeanor charge and fail to appear, you can face the following consequences:

• the court will issue a bench warrant for your arrest,
• the judge can impose a civil fine against you for missing court,
• you will face an additional misdemeanor charge for failure to appear, and
• the court will likely set higher bail, if any is required.

In many states, the criminal charge for failure to appear depends on the underlying offense. California is one of these states.

California Penal Code 1320 PC is the statute that covers failure to appear if you have been:

• released on your own recognizance, without posting bail, and
• given a court order to appear at a later time.²

If the underlying offense is a misdemeanor case, then the charge for failure to appear will also be a misdemeanor. In these cases, failure to appear in the state of California is punishable with up to 6 months in county jail.³ This is in addition to any jail time that the original offense carries.

California also allows the judge to impose a civil fine against you, which can be as high as $300.⁴ The judge will also issue a bench warrant to bring you to court.

Furthermore, the judge will likely be far less lenient when they set bail because you already skipped a court date. The judge will likely see this as warranting a higher bail to ensure that you appear in the future.

Importantly, a missed court date for a misdemeanor offense does not generally carry immigration consequences. However, the underlying charge might.⁵

What is a bench warrant?

A bench warrant is a court order for law enforcement to arrest you and bring you to court. It is similar to an arrest warrant, except that it is initiated by the court, not by law enforcement.

Judges usually issue a bench warrant after you fail to appear at a required court date. If the underlying offense was a misdemeanor, like some driving under the influence (DUI) cases, police officers tend not to actively execute the warrant, though.

Instead, they will execute it by arresting you the next time they interact with you. This often happens at a routine traffic stop.

However, if the underlying offense was serious or there are potential victims who may be endangered, police may actively seek you out.

What if it was for a felony?

Failing to appear for a court proceeding related to a felony charge is more severe.

California is one of the many states that treat failure to appear as a felony if the original charge was also a felony.

California Penal Code 1320.5 PC makes it a crime to skip court if:

• the offense was a felony, and
• you were released from custody on bail.⁶

Violations carry up to:

• up to 3 years in county jail or state prison, and/or
• $10,000 in fines.

Additionally, if you had been released on bail, failing to appear will likely lead to the forfeiture of the bond.

What if it was for a traffic ticket?

Some states treat the failure to appear in court over a traffic ticket as an infraction. In California, though, it is a misdemeanor to willfully miss a court date for a traffic violation.

Violations of California Vehicle Code 40508a VC carry up to:

• 6 months in county jail, and
• $1,000 in fines.⁷

Are there any legal defenses?

There are several legal defenses that a criminal defense attorney can help you raise to fight the charge of failure to appear.

The most common is that the failure to appear was not willful. It is up to the prosecutor to show that you missed the court date willingly or on purpose.⁸ If you forgot about the court appearance or were not adequately notified, it can be a strong defense.

By establishing an attorney-client relationship with a criminal defense lawyer from a local law firm, you can get the legal advice you need to protect your future from the serious consequences of a conviction.

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