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Excuses for failure to appear in court: What will and won’t convince the judge?

Posted by Neil Shouse | Apr 06, 2019 | 0 Comments

defendant in front of judge
There are viable reasons for failing to appear in court

There are three good excuses for a defendant to use if he fails to appear in a California court for his criminal charges. These are that his failure to appear:

  1. was not on purpose (e.g., he was unaware of the court date),
  2. was not meant as an intent to evade the court, and
  3. occurred because he never signed an agreement to appear in court.

A few excuses that will never convince a judge include:

  • the defendant did not feel like appearing in court,
  • the accused ignored the court date because he is innocent, and
  • the defendant had a social gathering to attend.

Please note that the failure to appear in court, if inexcusable, may be grounds for a criminal offense under California Penal Code 1320 and 1320.5. And, this offense can be charged in addition to the offense the defendant failed to appear for.

What excuses should a defendant use if he failed to appear in court?

An accused should use one of the following three excuses if he fails to appear in court:

  1. he did not miss an appearance on purpose,
  2. in failing to appear, he did not intend to evade the court, and
  3. he never signed an agreement to appear.

The first two above represent good excuses because “failure to appear” is a real crime under PC 1320 and 1320.5. And, the two excuses challenge two of the elements that a prosecutor must prove to successfully convict a party of this offense.

As to an agreement to appear, note that defendants who are released from custody on their own recognizance are required to sign a written agreement to appear in court when ordered to do so. If the defendant can prove that he never signed such an agreement, he has a valid reason for missing a court appearance.

What excuses should a defendant never use if he failed to appear in court?

An accused should never use any of the following excuses if he misses a court date:

  • he did not feel like appearing in court,
  • he ignored the court date because he is innocent, and
  • he had a social gathering to attend.

All of these are disrespectful to both the judge and the judicial system as a whole. They will only result in irritating the judge and perhaps further criminal charges.

A defendant should also never tell a judge that he did not appear on purpose and/or he intended to evade the court in doing so. Both of these directly help establish the crime of failure to appear, per PC 1320 and 1320.5.

What is failure to appear under California Penal Code 1320 and 1320.5?

A person can be charged with the crime of “failure to appear” in California if he:

  • is charged with or convicted of a California crime,
  • is released from custody, and
  • willfully, or purposely, fails to appear in court when required to do so, in order to evade the process of the court,

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.

What are the penalties if an accused doesn't appear in court?

The penalties for failure to appear in California depend on the type of crime a defendant was initially charged with or convicted of.

If an accused was charged with or convicted of a misdemeanor and released on his own recognizance, then failure to appear is a misdemeanor. The penalties include:

  • up to six months in county jail, and/or
  • a fine of up to $1,000.

But if an accused was either

  • charged with or convicted of a felony, and released on his own recognizance, or
  • charged with or convicted of a felony, and released on bail,

then failure to appear will be a felony under California law.

If charged as a felony, the crime is punishable by:

  • a county jail sentence of up to one year, or sixteen months or two or three years in prison, and/or
  • a fine of up to $5,000 if the defendant was released on his own recognizance, or $10,000 if he was released on bail.

In any of these cases, a judge will issue a California bench warrant for the defendant's arrest on failure to appear charges.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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