Failure to Appear in a California Court

"Failure to appear" refers to a situation where a person is legally required to go to appear in court for a matter, but willfully fails to do so. In California, this can result in (1) a bench warrant being issued for the person's arrest, and (2) additional criminal charges being filed.

A legal requirement to appear in court arises when a person (1) signs a written promise to appear, (2) is issued a subpoena to appear, or (3) while in court is verbally "ordered back" by the judge to reappear at a future court date.

Failure to appear crimes are defined in California Penal Code sections 1320, 1320.5, and 853.7; and in Vehicle Code sections 40508 and 40509.5.

Penal Code 1320 PC makes it a crime for people to fail to appear in court when:

  1. they have been released from custody on their own recognizance, and
  2. they are required to appear in court via a court order.

Penal Code 1320.5 PC makes it a crime for people to fail to appear in court when:

  1. they have been released from custody on bail, and
  2. they are required to appear in court via a court order.

Penal Code 853.7 PC says it is a crime for a person to willfully violate his written promise to appear in court.

Vehicle Code 40508 VC is the California statute that makes it a crime for a person to:

  1. break a promise to appear in court following a traffic ticket, or
  2. fail to pay bail following a ticket.

Vehicle Code 40509.5 VC authorizes the DMV to suspend a person's driver's license if he/she fails to appear in traffic court for a ticket or citation.

The penalties for the above crimes can include both:

Penalties may involve:

  • custody in county jail or state prison, and/or
  • substantial fines.

Note that there are a few good excuses for failing to appear in court. These may work as a legal defense to any criminal charges. Two excuses are:

  1. the defendant did not fail to appear on purpose, and
  2. the accused did not show up in court because of an emergency.

Our California criminal defense attorneys will highlight the following in this article:

judge waiting on defendant
California’s failure to appear laws make it a crime for a person to fail to appear in court when legally required to do so.

1. When is a person legally required to appear in court in California?

People are legally required to appear in court when they:

  1. give a written promise to appear,
  2. receive, or are subject to, a subpoena,
  3. are ordered back to court by a judge in a criminal proceeding, and/or
  4. are otherwise notified to appear.

Note that a defendant often gives a written promise to appear when released from custody on his/her own recognizance.

As to subpoenas, these typically apply to people called as witnesses in a hearing or trial. These persons receive a subpoena that tells them they must either:

  1. appear in court to testify in a court proceeding, or
  2. appear so that they can bring certain documents to a court proceeding.

An example of when a person might get ordered back to court is when:

  • a defendant pleads guilty to a charge, and
  • the judge orders the party back to court in a few weeks for his sentencing hearing.

2. What are the consequences of failing to appear?

The penalties for failing to appear in court depend on what statute a defendant is charged under. As discussed above, the possible statutes are:

  1. Penal Code 1320 PC,
  2. Penal Code 1320.5 PC,
  3. Penal Code 853.7 PC,
  4. Vehicle Code 40508 VC, and
  5. Vehicle Code 40509.5 VC.

2.1. Penal Code 1320 PC

The penalties for failing to appear under PC 1320 depend on the type of crime a defendant was initially charged with or convicted of.

If charged with or convicted of a misdemeanor, then failure to appear is:

  • also charged as a misdemeanor, and
  • punishable by up to six months in county jail.1

If charged with or convicted of a felony, then failure to appear is:

  • also charged as a felony, and
  • punishable by either a jail or a state prison sentence (of up to three years).2

2.2. Penal Code 1320.5 PC

Failing to appear in court under PC 1320.5 is charged as a felony. The crime is punishable by:

  • imprisonment in the county jail for up to three years,
  • a maximum fine of $10,000, or
  • a state prison sentence of up to three years.3

2.3. Penal Code 853.7

Failing to appear is a misdemeanor if charged under PC 853.7. The offense is punishable by:

  • custody in county jail for up to six months, and/or
  • a maximum fine of $1,000.4

2.4. Vehicle Code 40508 VC

The failure to appear after a traffic citation or ticket is a misdemeanor. This is true even if the original traffic violation was just an infraction.

Violations of this statute can subject a person to:

  • up to six months in county jail, and/or
  • a fine of up to $1,000.5

A conviction could also lead to the defendant losing his/her driving privilege for up to 30 days

2.5. Vehicle Code 40509.5 VC

VC 40509.5 authorizes an additional penalty on a driver if he/she violates VC 40508.

This statute authorizes the DMV to put a hold on a person's driver's license if he/she fails to appear in traffic court for a ticket or citation.

This hold can:

  1. result in the suspension of a driver's driving privileges, and
  2. remain in effect until a motorist appears in court or pays a fine.
attorney explaining situation with judge
There are legal defenses one can make if charged with failing to appear in court.

3. What excuses will a court accept for a person missing a court date.

There are four good excuses for a defendant to use if he fails to appear in court. These excuses may work as legal defenses to challenge failure to appear charges.

The excuses include that the no show in court:

  1. was not on purpose,
  2. was not meant as an intent to evade the court process,
  3. occurred because the defendant never signed an agreement to appear in court, and
  4. was due to an emergency.

Note that the first three excuses work because:

  • they challenge some of the elements under the failure to appear statutes, and
  • a prosecutor must prove these elements to convict an accused of a crime.

Also note that the following will never work as an excuse for failing to appear:

  1. the defendant did not feel like showing up in court,
  2. the accused ignored the court date because he/she is innocent, and
  3. the defendant had “something else going on.”

4. What should a person do if there is an active warrant?

A judge often issues a bench warrant after a defendant fails to appear in court. This warrant authorizes the arrest of the defendant.

If a bench warrant, then the accused must try to “recall” or “quash” it. This means having it cleared from the judicial system.

The defendant, or in some cases the accused's lawyer, must appear in court to recall the warrant.

A defendant's lawyer can appear in court to quash a warrant provided that:

  • the defendant failed to appear, and
  • the court appearance was in relation to a fine or a misdemeanor case.

An accused, though, must personally appear in court if he failed to appear in a felony case.

For additional help...

california criminal defense attorneys
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For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.


Legal References:

  1. California Penal Code 19 PC.

  2. California Penal Code 1170h PC.

  3. California Penal Code 1320.5 PC.

  4. California Penal Code 19 PC.

  5. California Penal Code 19 PC.

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