Failure to Appear in Court in California – Can I Go to jail?

Failure to appear refers to a situation where you are legally required to appear in court for a matter, and you willfully fail to do so. In California, this can result in (1) a bench warrant being issued for your 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 section 40508.

Penal Code 1320 PC makes it a crime for people to fail to show up 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 people to willfully violate their written promise to show up in court.

California 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.

The penalties for the above crimes can include both:

• misdemeanor charges, or
• felony charges.

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 against 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:

• 1. When is a person legally required to appear in court in California?
• 2. What are the consequences of failing to appear?
  • 2.1. Penal Code 1320 PC
  • 2.2. Penal Code 1320.5 PC
  • 2.3. Penal Code 853.7 PC
  • 2.4. Vehicle Code 40508 VC
• 3. What excuses will a court accept for a person missing a court date?
• 4. What should a person do if there is an active warrant?

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/her sentencing hearing.

2. What are the consequences of failing to appear?

The penalties for failing to appear (FTA) in court depend on what statute a defendant is charged under. The court is likely to issue an FTA warrant. As discussed above, the possible statutes under California law are:

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

2.1. Penal Code 1320 PC

The penalties for FTA 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 on the misdemeanor charge is:

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

If charged with or convicted of a felony, then FTA 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

FTA 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

FTA 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

(See our related article on PC 853.8.)

2.4. Vehicle Code 40508 VC

FTA 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.

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/she does not show up to court. These excuses may work as legal defenses to challenge FTA 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 FTA 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 FTA:

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 does not show up to court in the state of California. This warrant authorizes the arrest of the defendant.

If there is 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/she failed to appear in a felony case.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our criminal defense lawyers at Shouse Law Group. If you wish to create an attorney-client relationship, we can discuss discount rates and payment plans. We have offices in Los Angeles and throughout the state.

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