MISC Warrants

People with outstanding bench warrants for their arrest may file a motion with the court to recall (“quash”) the warrant. The court will then hold a hearing where the defense and prosecution can argue their positions. Ultimately, the court has discretion whether to quash the warrant or let it stand.

What is a bench warrant?

A bench warrant gives law enforcement the authority to go out and arrest the person named in the warrant. Trial court judges typically issue bench warrants when a person violates court orders, such as failing to appear at a required court date on their case docket. After the issuance of the warrant, the person is vulnerable to arrest at any time (particularly during traffic stops after the police run the driver’s name).

Bench warrants are different from arrest warrants in five main ways:

      1. Arrest warrants mark the beginning of a criminal case. Bench warrants can be issued anytime during the case.
      2. Judges may issue arrest warrants only after the police submit an “information” or after a grand jury “indicts” the suspect.
      3. Judges may issue bench warrants at their own discretion without law enforcement asking for it.
      4. Arrest warrants only name a defendant in a criminal case. Bench warrants can name anyone – such as a witness – that allegedly violates court orders.
      5. Arrest warrants concern only the crimes that the defendant is accused of committing. Bench warrants concern only the court orders that the person named in the warrant is accused of violating (such as missing court).

It is rare for judges to recall arrest warrants. But judges will usually recall bench warrants if the person named in the warrant (or his/her attorney) files a motion to quash the warrant and appears at the court hearing.

But like arrest warrants, bench warrants remain outstanding until the judge recalls them. Otherwise, they never expire. And as with arrest warrants, people arrested pursuant to a bench warrant can be held on a bail bond.

How do I quash a bench warrant?

When people learn they have an outstanding bench warrant, they should hire an attorney (if they do not already have one). The attorney can then file a “motion to quash the warrant” with the court on the person’s (petitioner’s) behalf. This motion asks the judge to recall the bench warrant.

Upon receipt of this motion, the judge will schedule a court hearing (typically within a week of the filing). Sometimes the judge will require the person named in the warrant to appear in person. But in most cases, the person’s defense attorney can appear on his/her behalf. Judges are more likely to require the person to be present if:

      • the underlying case is for a felony,
      • the person named in the warrant is a flight risk, and/or
      • the person named in the warrant has a history of missing court appearances

At the motion hearing, the person’s defense attorney will ask the judge to quash the warrant. Prosecutors typically urge the court to let the warrant stand. Sometimes the judge will want to know the reason that the person missed court before making a decision.

If the court quashes the warrant, the person named in the warrant is no longer vulnerable to arrest.2

Defendants in felony cases usually have to appear in person at any bench warrant hearings

What is the law in California?

California Penal Code 978.5 PC authorizes judges to issue bench warrants when people miss their court dates. Bench warrants can be served in any California county in the same way as arrest warrants.3

Note that California defendants who miss their court dates can face additional criminal charges for failure to appear (PC 1320 and 1320.5). Failure to appear (FTA) in a misdemeanor case is also a misdemeanor, carrying:

      • up to 6 months in jail, and/or
      • up to $1,000 in fines

Failure to appear in a felony case is also a felony, carrying:

      • up to 1 year in jail, or
      • up to $5,000 in fines, or
      • a state prison sentence of 16 months, two years, or three years.4

A common defense to FTA charges is that the defendant did not willfully miss court. For instance, simply forgetting to go is not willful – it is an accident. Another defense is that the defendant did not mean to avoid the court process. For example, defendants who have to miss court because they get injured and have to go to the ER are not guilty of FTA because they were not trying to avoid court. Want to Recall An Arrest Warrant, call Wais Azami

Note that FTA convictions can be appealed from state superior court to the court of appeals and eventually the supreme court. If unsuccessful, appellants may even be able to request a rehearing where the judges hear oral arguments en banc. The appellant may be able to convince the appellate judges to grant relief, set aside the court’s mandate and remand the case

The information within this website is NOT LEGAL ADVICE but merely meant to be general information. Nothing in this website, nor filling out any forms on this website, shall constitute an attorney-client relationship.

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