Penal Code 978.5 PC is the California statute that authorizes a judge to issue a bench warrant for a person’s arrest whenever that person fails to appear in court.
The full text of the statute is as follows:
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 their 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.
(c) This section shall become operative on July 1, 2021.
Additional examples of when a bench warrant may be issued include:
- Manuel is released from jail on his own recognizance and fails to appear in court the following week for his sentencing hearing.
- Jill is released from custody on bail after being charged for shoplifting, per PC 459.5, and does not appear in court for her California jury trial.
- Morgan is cited for speeding, under VC 22350, and fails to appear for his court hearing to contest the ticket.
Please note that, per PC 978.5b, a bench warrant can be served in any county in the same manner as a California arrest warrant.
Also note that a bench warrant issued in California does not expire. To make it go away, the person named in it must appear in court in order to recall it or quash it.
If a party does not clear a bench warrant, law enforcement personnel have the authority to arrest the person and bring him to court. Once brought to court, the judge can either:
- release the party with a warning, or
- place the person in custody.
Our California criminal defense attorneys will explain the following in this article:
- 1. What is authorized under PC 978.5?
- 2. How long does a bench warrant last?
- 3. How does a party clear a bench warrant in California?
- 4. What happens if a person is arrested per a bench warrant?
- 5. What is “failure to appear” under Penal Codes 1320 and 1320.5?
- 6. What is “Own Recognizance Release?”
1. What is authorized under PC 978.5?
Penal Code 978.5 PC is the California statute that authorizes a judge to issue a bench warrant for a person’s arrest whenever that person fails to appear in court.1
The statute also lists certain scenarios when a bench warrant may be issued. Some of these include when a defendant fails to appear after he:
- is ordered by a judge or magistrate to personally appear in court at a specific time and place,
- is released from custody on bail and is ordered by a judge or magistrate to personally appear in court at a specific time and place.
- is released from custody on his own recognizance and promises to personally appear in court at a specific time and place.
- 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.
- 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.2
Please also note that, per PC 978.5b, a bench warrant can be served in any county in the same manner as an arrest warrant.3
2. How long does a bench warrant last?
A bench warrant issued in California does not expire. It is not deleted or removed after, say, five years. Rather, it remains in effect until:
- the person named in the warrant dies, or
- the warrant gets cleared (which is to say a judge recalls it).
3. How does a party clear a bench warrant in California?
Clearing a bench warrant is also referred to as “recalling” or “quashing” one. Quashing a bench warrant means having it cleared from California’s judicial system.
A party must appear in court in order to recall a warrant.
A person can have his attorney appear in court on the person’s behalf, provided that:
- the party failed to appear for a court appearance, or
- the party failed to make a payment in connection with a misdemeanor offense.
If, though, a person failed to obey a court order that arose out of a felony case, the party must be present in court personally (with or without an attorney) in order to clear a bench warrant.
In trying to quash a warrant, a party (or his attorney) can try to do so by arguing that:
- he never received a notice to appear in court,
- he complied with all the conditions and requirements within a court order,
- he was unaware that a case had been filed, and/or,
- there has been a mistake in identity.
4. What happens if a person is arrested per a bench warrant?
If a party does not clear a bench warrant, law enforcement personnel have the authority to arrest the person and bring the party to court.
Once brought to court, the judge can either:
- release the party with a warning, or
- place the person in custody.
The judge will make this decision after considering the person’s:
- criminal history,
- flight risk, and
- circumstances that led to the warrant.
Please also note that if a warrant does not get recalled, it could lead to:
- a probation violation,
- enhanced fines, and/or
- a California driver’s license suspension.
5. What is “failure to appear” under Penal Codes 1320 and 1320.5?
Penal Codes 1320 and 1320.5 PC are the California statutes that sets forth the crimes of “failure to appear.”
Under these statutes, a person can be charged with a failure to appear offense if he was:
- charged with or convicted of a California crime,
- released from custody, and
- willfully failed to appear in court when required to do so, in order to evade the process of the court.4
California Penal Code 1320 sets out the crime of failing to appear for defendants who are released on their own recognizance. Penal Code 1320.5 describes failure to appear for California defendants who are released on bail.
6. What is “Own Recognizance Release?”
An “own recognizance” release lets someone get out of jail after an arrest without having to post bail. Also known as an “O.R. release,” it lets a defendant go based solely on his or her promise to appear in court.
Anyone charged with a California criminal offense can, in theory, be granted an O.R. release. This is unless:
- the charged offense is one punishable by death,
- letting the defendant out will compromise public safety, or
- there are no reasonable assurances that the defendant will appear in court.5
For more help…
If you or someone you know is named in a bench warrant, issued per Penal Code 978.5 PC, we invite you to contact us for a free consultation. We can be reached 24/7.
References:
- California Penal Code 978.5 PC.
- See same.
- California Penal Code 978.5b PC.
- California Penal Code 1320 PC.
- California Penal Code 1270a PC.