A bench warrant is a court order instructing law enforcement to arrest you and bring you to court. A judge will issue a bench warrant for your arrest if you have failed to comply with another court order, or you failed to appear for a court hearing.
Six key things to know about bench warrants are:
- if one is issued, you can be arrested,
- they can be issued for a variety of reasons,
- law enforcement can actively or passively seek you out,
- they can be recalled and quashed,
- failing to appear is a crime, and
- turning yourself in should only be done with the help of a lawyer.
1. You will be arrested if there is a bench warrant for you
The most important thing to know about a bench warrant is that, like an arrest warrant, it can lead to your arrest. A bench warrant is basically an order from a judge for police to find you, detain you, and bring you to court.
Once arrested on the bench warrant, it may be several days before you can be brought to court.
Once in court, the judge will either:
- hold you in confinement until your next court appearance, or
- release you.
In some cases, bail may be set. If you manage to post bail, you will be released.
In other cases, you will be released on your own recognizance.
Bench warrants are only different from arrest warrants in that these types of warrants:
- lead to your arrest for defying court orders or contempt of court (arrest warrants are for if you are suspected of committing a crime),
- are issued by a judge (arrest warrants are issued by law enforcement),
- are issued after you defy court orders (arrest warrants are issued after probable cause has been established that you committed a crime), and
- can come at any time during an open case (arrest warrants initiate the criminal justice process).
2. Bench warrants are issued for a variety of reasons
Bench warrants are a tool that courts use for lots of different reasons to ensure their orders are followed. 5 common reasons that bench warrants are issued are if you:
- failed to appear at a court hearing where your presence was mandatory,
- violated probation,
- have failed to pay a fine or victim restitution,
- have not paid child support, or
- violated any other court order or rules of the court.
Bench warrants are powerful tools for judges if they think their orders are not being followed or taken seriously.
3. Police may actively or passively search for you
Once a bench warrant is issued, police officers will execute it by arresting you. How vigorously they enforce the bench warrant will depend on several factors, including:
- the nature of the case, such as if it concerns your failure to appear in a serious criminal case or if you have just failed to pay a traffic ticket,
- public endangerment,
- your flight risk, and
- your criminal record.
In serious cases, the police will actively seek you out. They may go to your known place of residence to execute the bench warrant right after issuance.
In less serious cases, the police will look for you passively. If you cross paths with a law enforcement officer and there is an outstanding bench warrant with your name on it, they will execute it at that time. This happens most often at a traffic stop.
Note, though, that bench warrants typically do not expire. Once a judge issues a bench warrant, it will stay pending until it is either:
- executed, or
- recalled and quashed.
4. Bench warrants can be recalled and quashed
Bench warrants can be recalled and quashed, removing it from the judicial system. This is also referred to as clearing the warrant. Recalling a bench warrant generally requires persuading the judge at the bench warrant hearing that you:
- did not receive notice of the court date that you missed,
- have actually complied with all of the court’s orders,
- missed your court appearance due to a legitimate emergency,
- did not know of the case, and/or
- are not the subject of the warrant, in an instance of mistaken identity.
The criminal defense lawyers at our law firm have found that bench warrants can often be quashed by a lawyer in your absence if it is connected to a misdemeanor offense. If it is a felony case, you generally have to be present at the bench warrant hearing.
Having legal representation during this process is essential. You could be held in jail if you do not persuade the judge. A criminal defense attorney can take measures that make this less likely.
5. Failure to appear in court is a crime
Failure to appear at a mandatory court appearance is a crime. If you do not appear when required to do so in a criminal case, another criminal charge will be filed against you.
Some states, like California, have different criminal laws and penalties for failing to appear, depending on the underlying case:
- California Penal Code 853.7 PC is for willfully violating a written promise to appear on your own recognizance,
- Penal Code 1320 PC is for violating a court order to appear in court after your release from custody,
- Penal Code 1320.5 PC is for violating a court order to appear and you are out on bail, and
- California Vehicle Code 40508 VC is for failing to appear in connection with a traffic violation.
Failing to appear is generally a misdemeanor with less than a year of jail time. However, it may be a felony if the underlying criminal offense is a felony.[1]
This is in addition to the underlying offense.
Furthermore, failing to appear will not look good in your underlying case. Depending on the circumstances, the judge may see you as unreliable or even as a flight risk. If there comes another time where you ask to be released while your case is pending, you may get denied or have extra terms and conditions attached to your release.
6. You should have a lawyer beside you if you turn yourself in
One way to respond to a bench warrant is to turn yourself in. There are several benefits to doing so:
- it signals to the judge that you are responsible and want to resolve your case,
- it avoids the perception that you are a flight risk,
- it increases the odds that you will be treated leniently during the bench warrant hearing,
- it lets you decide when to do it, avoiding the inconvenience of an arrest, and
- it avoids the stigmatization that comes with being arrested by police.
However, the judge may still decide to hold you in jail after you turn yourself in. The best way to avoid this outcome is to have a lawyer with you when you turn yourself in. An experienced criminal defense attorney will know the best way to ensure that you get released.
Legal References:
[1] See, for example, California Penal Code 1320 PC and Virginia Code 19.2-128.
