Warrant Recall

California Bench Warrant Attorney


Bench warrants (sometimes referred to as “body attachments”) are the most common type of warrant issued in California. They refer to a warrant that is issued from “the bench”, which means, the judge.

Unlike a California arrest warrant, a bench warrant isn’t issued based on suspected criminal activity. A bench warrant is most typically issued for:

  • failing to appear for court,
  • failing to pay a fine, and/or
  • failing to obey any other court order.

Doing any of the above is considered “contempt of court” and subjects you to a bench warrant and a possible:

  • a  probation violation,
  • a  county jail or California state prison sentence,
  • enhanced fines, and/or
  • a California drivers license suspension.

However, a judge can also issue a bench warrant if you are indicted by a California grand jury. If this is the case, and you are not in custody when the indictment is received, the judge will issue a bench warrant for your arrest.

In order to understand better when and why bench warrants are issued and, more importantly how to get one cleared, I will explain the following topics:

How to Recall and Quash a California Bench Warrant

The Consequences of Failing to Appear (FTA)

Failure to Pay (FTP) Fines or Restitution / Disobeying Court Orders

Arrest and Bail Issues with Respect to Bench Warrants

What Happens if I Go Directly to Court?

If, after reading this article, you would like more information, we invite you to contact us.

How to Recall and Quash a California Bench Warrant

Simply put, “recalling and quashing” a bench warrant means having it cleared from the judicial system. The bottom line is that you (or sometimes your attorney) must appear in court in order to complete the process.

If you

  • fail to appear for a court appearance, or
  • fail to pay a fine in connection with a misdemeanor offense,

your California warrants attorney may be able to have the warrant recalled and quashed in your absence.

If, however, you fail to obey a court order that arises out of a felony case, you must be present to clear your warrant.

Officer’s duties

A California bench warrant authorizes law enforcement officers to arrest you and bring you directly to court. Once you are in court, the judge will either 1) release you with a warning, or 2) incarcerate you, depending on:

  • your criminal history,
  • the circumstances that led to the warrant, and
  • your flight risk.

If you fail to appear for your arraignment, the arresting officer will bring you before the judge who issued your warrant. However, upon your request, the officer could alternatively bring you before any judge in the issuing county (or in the county where you were arrested) for the purpose of setting bail.

If you fail to appear for your sentencing, you must appear before the judge who issued your warrant. This remains the case regardless of where you were arrested.

Time restrictions

A California bench warrant, like an arrest warrant, must be served within a reasonable time after its issuance. If it isn’t — and your right to a speedy trial has been violated — you may be entitled to a dismissal.

A bench warrant is also served in the same manner as an arrest warrant. This means that felony bench warrants may be served at any time. Misdemeanor warrants, however, may only be executed between 6 a.m. and 10 p.m. absent “good cause”.

Good cause means that there is a factual basis for believing that the nighttime intrusion would be justified based on exigent circumstances. If, for example, you have several outstanding warrants and repeatedly disobey the court process, a judge may permit officers to serve your bench warrant in the middle of the night.

The Consequences of Failing to Appear (FTA)

You “fail to appear” (FTA) if you don’t appear in court when you have been previously ordered to do so, either by the judge or in a notice to appear.

There are a variety of laws that relate to FTAs, depending on

  • whether you have failed to appear in response to a written or verbal promise to appear,
  • whether you have posted bail,
  • whether your FTA was in response to a vehicle code violation, and
  • whether your FTA was in conjunction with a misdemeanor or felony charge.

You may be charged with a California FTA in a variety of situations. Some examples include (but are not limited to) failing to appear:

  • for a court proceeding (such as your arraignment, a pre-trial hearing, or      sentencing following a plea bargain or trial), if you were ordered to personally appear
  • for a progress report while on probation,
  • to show proof that you completed your court-ordered California DUI school or domestic violence class,
  • for a jury summons, or
  • for trial (if you were personally ordered to appear by the judge) because you      are (1) the defendant, (2) a witness in the case, or (3) a juror on the case.

If you fail to appear for any scheduled court date, the judge may issue a California bench warrant for your arrest. This is always the case if the judge specifically orders you to appear personally, even if you grant your attorney the authority to represent you in your absence.

Witnesses and jurors are subject to different rules than defendants. If you are a witness or juror and fail to appear in response to a subpoena or summons, the court will issue you a “failure to appear” notice before it issues a bench warrant for your arrest.

However, if the court believes that you are material to the case or that urgency dictates your immediate presence, it may first issue a bench warrant in lieu of the FTA “notice”.

Penalties and Punishment for failure to appear in California courts

If you willfully fail to appear on a scheduled court date for a misdemeanor case after you were released on your own recognizance (otherwise known as an “O.R.” release), the prosecution will additionally charge you with “failure to appear” as a misdemeanor.

Before you can be convicted of this offense, the prosecutor must prove that you intended to “evade the process of the court”. Evidence of your intent may be established if you failed to appear within 14 days of your appearance date. Under California Penal Code 1320, if convicted, you face a maximum $1,000 fine and a maximum six-month county jail sentence.

If you are released O.R. for a felony case (and the same facts apply), you will be additionally charged with felony “failure to appear”. Under California Penal Code 1320, if convicted, you face a minimum $5,000 fine and a county jail or state prison sentence.

It should be noted that if your FTA involves a felony case where you posted bail, the maximum fine increases from $5,000 to $10,000.

Failure to Pay (FTP) Fines or Restitution / Disobeying Court Orders

California Bench Warrants for failure to pay a fine

The court will also issue a bench warrant for your arrest if you willfully fail to pay court fines or ordered restitution. However, the judge cannot penalize you for failing to pay restitution or a fine if you do not have the financial ability to pay, as long as you comply with all other court orders.

If your financial situation changes…and will force you to disobey a court order…it is advisable that you contact an attorney before you disregard the order. An experienced lawyer may be able to schedule a hearing date with the court before a warrant is issued.

California Bench Warrants for disobeying a court’s orders

The court may also issue a California bench warrant if you fail to obey its orders. This is most typically the case following a criminal proceeding after you have been placed on probation. If, for example, you do not complete all of your court-ordered classes, community service, or report for drug-testing if ordered to do so, you will be charged with a probation violation.

When the court becomes aware of a probation violation (which, in essence is a failure to obey a court’s order), it may issue a bench warrant to address the situation.

Arrest and Bail Issues with Respect to California Bench Warrants

If you haven’t yet posted bail…and the arresting or investigating officer believes that your bail should be increased…he/she may petition the court for a bail increase. This may happen if, for example, you were arrested for making Penal Code 422 criminal threats and the officer doesn’t believe that your bail is sufficient to protect the person whom you allegedly threatened.

If the officer convinces the judge to raise your bail while you are present in court, you will immediately be incarcerated until the new bail amount is posted. If the judge orders an increased bail in your absence, the judge will issue a bench warrant for your arrest.

If you have posted bail, and you subsequently fail to appear, the judge will most likely forfeit your bail and issue a bench warrant for your arrest.

How the court enters the California bench warrant “in the system”

That said, the court must still follow certain rules. After the judge issues the warrant, the clerk directs the appropriate agency to enter your warrant into the National Crime Information Center “NCIC”. This is the law for all cases involving bail bonds.

If the agency fails to enter your warrant into the NCIC and that failure

  1. prevents the bondsman from surrendering you into custody,
  2. prevents your arrest, or
  3. results in your subsequent release from custody,

the court must set aside the forfeiture and “exonerate” or cancel your bond.

For example: Let’s say that following your felony arrest, you post bail through a bail bondsman. You then fail to appear for your arraignment and the court issues a bench warrant for your arrest. Your bondsman finds you and detains you until the police arrive. However, the police can’t find your warrant in the NCIC and subsequently let you go.

The fact that your warrant wasn’t entered into the system resulted in your release. As a result, the court would exonerate your bond and set aside the forfeiture.

What Happens if I Go Directly to Court?

Going directly to court…instead of being “picked up” on a warrant…is the most efficient (and least embarrassing) way to clear your California bench warrant. There is, however, a very important caveat that goes along with this statement.

Unless you are prepared to go straight from the court into custody…which is a very real possibility…it is advisable to take your California criminal defense lawyer with you.

We say this because even if you have an innocent, legitimate excuse for disobeying the court, the judge will most likely distrust your explanation. From the judge’s perspective…he/she has “heard it all before”.

Your California criminal defense lawyer knows the most effective arguments, evidence, and steps to take to convince the judge (1) to recall and quash your warrant, and (2) to release you O.R. or with a reduced bail in lieu of being taken into custody.

Examples of arguments that your warrants lawyer could present on your behalf include (but are not limited to):

  • the fact that you never received a notice to appear (it was mailed to an old      address, for example),
  • the fact that you complied with and completed all of your probation      requirements and simply didn’t realize that you were supposed to provide proof to the court,
  • that you were under the mistaken impression that your charges had been      dismissed or that you were unaware that the case was even filed, and, of      course,
  • that although you share the same name with the person in the warrant, you were wrongly arrested based on mistaken identity.

If you would like more information about California bench warrants or would like to speak confidentially with an attorney about recalling and quashing your warrant, please don’t hesitate to contact my office

Call us today (619) 238-1905