To be convicted of failing to appear in court the prosecution must prove all 4 elements of this offense by the criminal standard of beyond a reasonable doubt.
- You were charged with either a misdemeanor or felony offense
- You were released from custody on an O.R. release. (On your own recognisance)
- You willingly failed to appear on your ordered or scheduled court date
- Your failure to appear was with the intent or purpose of evading the process of the court
How Does The Prosecutor Prove You Did Not Show Up Willingly?
By not showing up in court, this constitutes proof of your willingness to not appear. No intent to violate the law is required2.
There is a legal presumption that you intended to evade the process of the court if you willfully fail to appear within 14-days of your assigned court appearance.
If you willingly fail to appear after having been released O.R., and you had been charged with a misdemeanor offense, your failure to appear is a misdemeanor3.
Failure to appear on a traffic ticket is a misdemeanor5.
- Incarceration in county jail for up to 6-months
- And/or a fine of up to $1,000
- And/or a suspension of your driver’s license if your failure to appear was in traffic court6.
- Incarceration in the county jail for up to one-year
- And/or a fine of up to $5,000 if you were released O.R., and up to $10,000 if you posted bail or bond
- Or, incarceration in state prison for 16-months, 2 or 3-years
Are There Any Other Potential Penalties If You Fail To Appear?
The court could also change the terms and conditions of your release by increasing the bond if you paid one or require that you remain in jail until trial or disposition of your case.
You are also subject to a fine of $300 for failure to appear for a misdemeanor, felony, or infraction7.
For this fine to apply, the prosecutor must show that a notice to appear in court was sent to your address and you failed to appear without good cause.
Generally, a failure to appear under Penal Code § 1320 will not result in any negative immigration consequences.
For a non-citizen to face deportation or to make him/her “inadmissible”, the crime must be one of moral turpitude, a firearm offense, drug conviction, aggravated felony, or that involving domestic violence.
If the underlying offense for which you failed to appear includes any of these, then you are subject to deportation or being deemed inadmissible for immigration purposes.
There are defenses to the crime of failing to appear including the following.
You Did Not Willfully Fail To Appear In Court
You do need a valid and credible excuse for failing to appear. While a judge might accept your excuse that you simply forgot, in some cases you may need a more convincing explanation that your failure to appear was not willful.
There are many examples in which you did not willfully fail to appear:
- You might have to show that you had been injured,
- Were extremely ill, or
- Had to take care of an emergency such as taking someone to the hospital.
Additional reasons may include:
- You wrote the wrong date down,
- Your attorney’s office gave you the wrong date,
- You were in custody on another unrelated matter, or
- You lacked any means to get to court and were unable to inform the court of your inability to attend.
No Intent To Evade The Court Process.
This is similar to the first defense. You might be able to show lack of intent by explaining that you had a serious family emergency, suffered an injury or serious illness, and simply were unable to contact the court.