Dealing With DUI Warrants From Missed Court Dates and Probation Violations

One of the most common forms of arrest or bench warrants in California Courts today are warrants from driving under the influence cases (Veh. Code sec. 23152). It is a common problem that we see often at TrafficCourtPros.com.  Here is some general information on how an Attorney would deal with a typical DUI warrant problem.

There are basically two ways to end up with a warrant after an arrest for driving under the influence:  1) a failure to appear in court; or 2) a violation of probation.  Step one is figuring out which type of warrant is the problem.  We’ll deal with each separately.

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Failure to Appear Problems.

Most DUI warrants result for missed court dates.  Usually, it is the first court date that gets missed (called the Arraignment).  When this happens, generally, the court will issue a bench warrant under penal code section 853.7 or Vehicle Code section 40508(a).

If the Defendant posted bail to get released from jail prior to court, the court will also revoke the bail bond, and thereby open the jail door for the defendant.

To get the warrant recalled after a missed court date (also known as a failure to appear), either the defendant or an Attorney representing the defendant must appear in court in person. Once in court, the Attorney or Defendant must ask the judge to recall the warrant.

Usually, this is a two step process:  1) getting the court clerk to get the case back on the courts calendar; and 2) appearing in court to ask the judge to recall the warrant.

Once a request to recall a failure to appear warrant is made, a judge has a few options:  1) approve the request and reinstate bail (if any); 2) increase the bail the defendant must pay to stay out of jail; or 3) take the defendant into custody immediately.

For many failure to appear warrants, an Attorney can do this work without the defendant being present in court - if the problem is addressed quickly.  But some judges will be harsh and require the defendant to appear in court, and then take the defendant into custody.  The court technically has the power to keep a defendant in jail until trial if they miss a court date.  But it is rare.

Once the warrant is recalled, the case progresses normally, and the defendant must enter a plea of guilty or not guilty and have a trial.  There may be an added charge of misdemeanor failure to appear (Vehicle Code section 40508a) for the defendant to deal with.  If there is a separate failure to appear charge added, it has a maximum penalty of 6 months to one year in jail once the case ends and the judge imposes a sentence.

Probation Violation Problems:

Most first time DUI defendants are found guilty (or plead guilty) and are given a sentence that includes 3-5 years of court probation.

This court probation includes requirements (terms) such as: 1) pay a fine; 2) do not drive without license and insurance; 3) complete a substance abuse program (AB548 program or similar); and 4) complete jail or sheriffs work program time by a certain date.

If a probationer fails to satisfy any of these terms, or gets arrested for a new crime, the court will typically revoke probation completely, and issue an arrest warrant.   This can happen if the probationer gets caught driving (vehicle code section 14601.2), or if they fail to complete the DUI classes on time.  A missed fine payment can also result in a warrant and probation violation..

Once probation is revoked in a misdemeanor or DUI case, the court has the power to re-sentence the defendant on the DUI charge.  Basically, they can start over.

And a probation violation can prevent a defendant from getting the conviction expunged after probation ends.

To clear a probation violation warrant, an Attorney or defendant must: 1) get the case back on the courts calendar; 2) appear in court and ask the judge to recall the warrant; and 3) ask the judge to reinstate probation on the original terms and conditions.

To get a case on the courts calendar, an Attorney would go to the criminal division court clerks office and request a calendar setting for the case.  Sometimes, a form is required.  In some counties, such as Santa Clara, the Attorney must go into the courtroom and get the judge to sign the setting form.  Then the form must be filed with the clerk.

In the Los Angeles County Superior Court, the process is slightly different.  The court clerk can set a date without a judge’s signature.

In some, but not all courts, an Attorney can get a misdemeanor DUI probation violation warrant recalled without the client in court.  Some courts will require the defendant to appear in court.  Some judges will take all people in this situation into custody and sentence them to jail for 30 days or more.  Some judges will give defendants a second chance if they take care of it correctly.

Probationers do have a right to a hearing to determine if they actually did violate probation.  But in most cases, a probation violation hearing is a waste of time, because the violation is obvious (i.e., missed fine payment, or caught driving). And to make it worse, the burden of proof on a probation violation is very low - it is easy to get a conviction for the prosecutor.

There are very defenses to a probation violation charge - other than it did not happen.  Explaining a missed fine date by stating you could not afford it will not work, and explaining why you were driving will not work.  Once the event happens, there is a violation. Dealing with a probation violation is usually more damage control than anything.

So in general, the Attorneys goals on a DUI warrant problem are to: 1) get the warrant recalled; and 2) talk the judge into a reinstatement of probation under the same terms and conditions as existed originally.

In most DUI cases, it is very important to get into court as soon as possible to solve the problem.  People who wait end up with the worst results.  Everyday that goes by with a warrant outstanding makes it harder to get a no jail result.

Answers to Some Frequently Asked DUI Warrant Questions:

Q. What Happens If A Defendant Cannot Pay a Fine on Time?

A. Generally, the courts treat a failure to pay a DUI fine as probation violation. A warrant can be issued,  and probation can be revoked. Once probation is revoked, a defendant cannot pay the fine until the court reinstates probation, because the fine and amount of the fine are terms of probation.

If a defendant cannot pay a fine on time, they should appear at the court clerks office in person (phone calls will not work) and request a court appearance.  Once in court, a defendant can ask the judge for more time.  This must be done before the fine payment is due.

Q. If I Have A Warrant in CA, but Live Out of State, How Can I Take Care of It?

A. In just about all DUI warrant cases, a court appearance is mandatory. However, an out of state defendant in a misdemeanor case can hire an attorney to make the appearances for them. Although most courts will require the personal appearance by the defendant before recalling a warrant, in some cases an attorney can ask the court for an exception where the defendant cannot go to court without interstate travel. Most courts will grant the request (but not all).

Q. How Can An Attorney Help on a DUI Warrant?

A. In most common DUI cases 9Vehicle code sections 21152(a) & (b), an Attorney can appear in court for a Defendant and handle the case (penal code section 977). If a warrant has been issued for a probation violation, or failure to appear, and Attorney can appear in court for hte defendant and request that the warrant be recalled. In most cases, an Attorney can get a routine warrant recalled without the client having to appear in court. However, it varies from courtroom to courtroom, and in some courts, judges policy dictates the defendant must be present to get a DUI or probation violation warrant recalled. Some judges will take defendants into custody, even if they try to get the warrant recalled correctly.

Not all county superior courts deal with DUI warrant cases the same. In some courtrooms, such as Judge Hastings courtroom in Santa Clara County, a defendant with a DUI warrant is likely to be arrested as soon as they show up in court. In other counties, such as San Diego, the judges will recall a DUI warrant, even years old, if the defendant appears in court voluntarily and takes care of the outstanding issues. An attorney can at times help a defendant get his case into the right court to minimize the chances of the client being taken into custody during a warrant hearing.

Q. What Happens if a Defendant Fails to Complete DUI “Classes” On Time?

A. In most first offense DUI cases, the penalties are routine - the court will impose a jail sentence that is suspended pending the completion of probation. Usually, completing DUI classes such as an AB548 program are included as terms of probation. If a person fails to complete the terms of probation on time, the court can issue a warrant, revoke probation, reinstate the suspended jail sentence, and charge the defendant with a separate probation violation. Because of this, a defendant who has failed to complete DUI classes on time generally must return to court for a request to reinstate probation and a new referral to the classes.

Q. Can Probation Be Reinstated If it Was Revoked?

A. In misdemeanor cases,  the court will frequently sentence a defendant to court probation in place of a jail sentence, which is “suspended” or paused. If the terms of probation are completed without trouble, the jail sentence is never imposed. However, if a defendant violates a term of probation, or misses a court date or deadline, the first action the court takes is to revoke probation.

Once probation is revoked, the court can re sentence the defendant to the “suspended sentence” and can charge the defendant with a separate probation violation that can lead to jail time on its own.

If probation has been revoked, a defendant can request that it be reinstated on the same terms and conditions as before. Whether or not the request is granted is up to the court, but if the court grants the request, yes, probation can be reinstated. It is common for a court to reinstate misdemeanor probation terms after they have been revoked, if the violation was minor, or recent.

Christopher Dort, Esq

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What to Worry About for a Pre Employment Background Check.

Looking for a new job and worried about a pre-employment background check? You are not alone. Finding out what information is available about you to potential employers, and taking corrective action early. may prevent the loss of a valuable job offer.

Here is a review of the problems that can show up on a background check, possibilities for corrective action, and info on how to Do Your Own On Line Background Check.

At TrafficCourtPros.com we have noticed a marked increase in the number of people who have been denied a valuable job opportunity because a pre employment background check revealed a bench warrant, misdemeanor failure to appear suspension, or pending probation violation.

The new corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. Employers are using these checks as a way to eliminate applicants with pending court problems.  However, many of the problems that can cause the loss of a job opportunity can be solved before a loss of a job opportunity.

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Job Applicants Forced to Consent to Invasive Background Screening.

Unfortunately, applicants have little leverage to parent hiring decisions based upon information found on background checks.

California’s State Constitution does include an explicit right to privacy in its list of citizen rights (Article I, section1), and a citizen may bring a lawsuit for damages if this right is violated. But generally, this right does not apply to pre employment background screening.

This is due to the fact that many employers require applicants to consent to invasive background screening by signing a waiver on a job application. It’s in all of that fine print you sign on the bottom of a job application form. In short, many companies require job applicants to give up any legal rights to privacy they have to limit pre employment screening.

If you give them permission, a potential employer may search for criminal records, do a credit check, and require drug testing.

There Is No Standard For Background Checks.

There is no standard “Background Check” that all employers use. Employers may use any number of methods and sources to do a background check. But the common denominator in all of the varied methods is that they search public criminal history records maintained by state and federal courts, and law enforcement agencies.

All adult criminal records are public information and available to anyone unless sealed by the court under special application.

Infractions Do Not Appear In Criminal History Reports.

In general, job applicants do not need to worry about violations that are classified as “Infractions”. An Infraction is technically not defined as a crime, and carries only a fine as punishment.

Because infractions are not crimes, a defendant only gets a limited right to contest an infraction. The court can convict a defendant of an infraction even if the defendant never shows up. This is not true of crimes.

In general, a job applicant does not need to disclose the fact that they were found guilty of an infraction (such as speeding) to an employer.

But misdemeanor problems, including a failure to appear on an infraction, does cause the loss of job opportunities.

Misdemeanor Convictions and Felony Convictions Are Crimes.

Misdemeanors and felonies are different than Infractions. They are crimes, and generally must be disclosed to a potential employer if the applicant is asked. Such convictions will appear on background checks and can cause disqualifications.

What Shows Up on a Background Check?

Most pre employment background checks will reveal the following problems:

Felony Convictions: nearly all felony convictions will be available to anyone who knows where to look.

Misdemeanors Convictions: Misdemeanor convictions are public records, and can easily be found by anyone doing a search for a criminal history. However there are some exceptions.

Common misdemeanors that appear on criminal history reports available to the public include Driving on a Suspended License (Vehicle Code section 14601.1 -14601.5); and Driving Under the Influence (DUI), Vehicle Code section 23152.

Some violations can also be infractions if so designated by the court at the time of conviction and are designated as “minor traffic offense” by the court and generally do not cause pre-employment disqualifications.

Violations such as driving without a valid license (Vehicle code section 12500a) is an example of a violation that can be a misdemeanor or infraction.

Active Probation Will Show Up.

Probation is generally a period of court supervision that is granted in place of a jail sentence. Probation usually includes a limited time period (months or years) and terms that are court orders the defendant must satisfy. Active probation periods will appear on a background check and can cause disqualification.

Outstanding Warrants Are a Common Cause of Job Applicant Disqualification.

The court needs the defendant (or an attorney for the defendant) in court to complete a misdemeanor conviction. Because of this, when there is a misdemeanor charge, and the defendant fails to appear for a hearing, the court will issue an arrest warrant or bench warrant to get the defendant into court.

When an employer discovers a job applicant has an outstanding bench warrant or arrest warrant, generally, it is cause for disqualification of an applicant immediately. From the employers point of view, they do not want to hire someone and worry that they will be arrested and miss work, or worse yet, be arrested at work. Clearly, employers prefer applicants without a warrant.

But some employers will give an applicant some time to clear a warrant problem once discovered.

How To Find Out What Information Is Available on You.

Knowing what is out there will help a job applicant prepare for the disclosure, and may allow corrective action before the employer makes a disqualification. Here is how to get the info yourself:

1. You can do your own Instant Background Check.

2. You can check with the court where you know you have a problem.

3. If you believe you may have a warrant or missed a court date, you can contact the local county sheriffs office to do your own warrant search, or call the court clerk where your case is located. Some courts and sheriffs offices allow warrant searches on-line.

4. You can find warrant and case information on anyone on line in counties such as Riverside, San Bernardino, San Diego, Orange County, and many others. Visit TrafficCourtPros.com for more free warrant search resources.

What Types of Background Problems Can Be Corrected?

Expungements Can Clear the Record of Some Convictions.

Some misdemeanor convictions and non violent felony convictions can be “expunged” – which means removed from if the courts records. To get an expungement, you must petition the court for termination of probation and dismissal of the case.

State law determines which convictions can be expunged, and generally the court requires that a defendant have proved himself or herself rehabilitated from the criminal behavior.

An application for an expungement commonly takes 60-90 days, but can take longer depending on the court.

Probation can be terminated early in some cases where the defendant has stayed out of trouble for most of the probation period. Request a free case review to get more info on this possibility for a specific case.

Bench Warrants Can Be Cleared In Court.

Misdemeanor Warrants can generally be fixed fast. Because warrants are issued from the court because a defendant has not appeared in court, once a court appearance is made, the court can recall the warrant.

In most misdemeanor cases, an Attorney can go to court for a defendant to clear a warrant. In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant.

On some warrants, jail time is required. But once the appearance is made and the court satisfied, the warrant can be recalled.

The amount of time it takes to clear a warrant varies from case to case. But in many cases, a court date for a warrant recall can be scheduled within a few days.

What Can An Applicant Do If A Potential Employer Finds Something?

Many companies will give an applicant time to clear a problem succh as a misdemeanor warrant or probation term. Applicants can negotiate for this time by asking for it. And any applicant in this situation would be wise to tell the employer exactly what they plan to do, and remind the employer of the potential value they can still bring to the company.

Driver History Reports Are Not Criminal Records.

However, applicants should be careful not to confuse a criminal history report from the court or law enforcement with a Drivers History Report from the Department of Motor Vehicles. A drivers history report or “DMV record” will reveal all moving violations, whether they are infractions or misdemeanors (including speeding, failure to appear, etc).

If you have a warrant you need to clear, probation you need to terminate, or a conviction you want to try to expunge, get a Free Attorney Case Review from TrafficCourtPros.com.

If you want to do your own Instant Background Check, I recommend: www.Gov-Resources.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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How Does DMV Treat a Failure to Appear? Here is the Law.

When a person misses a court date for a traffic citation, the court will usually add a new failure to appear charge (California Vehicle Code section 40508a) and possibly issue a bench warrant. But the trouble does not stop there. The court will also notify DMV of the failure to appear and then the DMV takes independent action against the persons drivers license.

The following is the law on how the California Department of Motor Vehicles must treat failure to appear holds:

Under California Vehicle Code section 40508, when a driver fails to appear in court after signing a promise to appear on a citation, the court reports the failure to appear to the Department of Motor Vehicles as a Failure to Appear (FTA) violation. DMV then places a hold on the drivers license (40509.5VC hold).

If the driver is ultimately convicted of the failure to appear in court (by losing a trial or admitting guilt), the court notifies DMV of the conviction, and DMV enters it on the drivers history record.

A failure to appear conviction is not assigned a “Negligent Operator” point count by DMV, like a moving vioaltion. However, a failure to appear conviction may be used as evidence of a negligent driver in future DMV Driver Safety hearings against the driver.

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Effect On A Drivers License Record:

Vehicle Code section 12808. (a) The department (DMV ) shall, before issuing or renewing any license, check the record of the applicant for conviction of traffic violations, traffic accidents, reports filed pursuant to Section 103900 of the Health and Safety Code, reports filed pursuant to Section 13803, or notices issued pursuant to Section 21061.

(b) The department shall, before issuing or renewing any license, check the record of the applicant for notices of failure to appear in court filed with it and shall withhold or shall not issue a license to any applicant who has violated his or her written promise to appear in court unless the department has received a certificate issued by the magistrate or clerk of the court hearing the case in which the promise was given showing that the case has been adjudicated or unless the applicant’s record is cleared as provided in Chapter 6 (commencing with Section 41500) of Division 17. In lieu of the certificate of adjudication, a notice from the court stating that the original records have been lost or destroyed shall permit the department to issue a license.

(c) (1) Any notice received by the department pursuant to Section 40509, 40509.1, or 40509.5, except subdivision (c) of Section 40509.5, that has been on file five years may be removed from the department records and destroyed at the discretion of the department.

(2) Any notice received by the department under subdivision (c) of Section 40509.5 that has been on file 10 years may be removed from the department records and destroyed at the discretion of the department.

(d) This section shall remain in effect only until January 1, 2011, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2011, deletes or extends that date.

Suspension for Failure to Appear. California Vehicle Code 13365:

13365. (a) Upon receipt of notification of a violation of subdivision (a) or (b) of Section 40508 the department shall take the following action:
(1) If the notice is given pursuant to subdivision (a) or (b) of Section 40509, if the driving record of the person who is the subject of the notice contains one or more prior notifications of a violation issued pursuant to Section 40509 or 40509.5, and if the person’s driving privilege is not currently suspended under this section, the department shall suspend the driving privilege of the person.

(2) If the notice is given pursuant to subdivision (a) or (b) of Section 40509.5, and if the driving privilege of the person who is the subject of the notice is not currently suspended under this section, the department shall suspend the driving privilege of the person.

(b) A suspension under this section shall not be effective before a date 60 days after the date of receipt, by the department, of the notice given specified in subdivision (a), and the notice of suspension shall not be mailed by the department before a date 30 days after receipt of the notice given specified in subdivision (a).

The suspension shall continue until the suspended person’s driving record does not contain any notification of a violation of subdivision (a) or (b) of Section 40508.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Update on How To Handle VC40508A Failure to Appear Cases in Santa Clara County

After a recent visit to the Morgan Hill Courthouse in Santa Clara County, and lengthy discussion with the court clerk and her supervisor(s), I discovered that the Santa Clara traffic courts are dealing with missed court dates on traffic citations a bit differently than other courts.

Here is an update on what I found, and my recommendations on how to handle a traffic citation with a failure to appear charge in San Jose, Palo Alto or Morgan Hill traffic court.

When a person misses the court date listed on the bottom of a traffic ticket in Santa Clara County Traffic Courts, the court does the following:

They add a misdemeanor failure to appear charge known as Vehicle Code section 40508A (aka VC40508a); and

Increase the total fine on the whole case.

They do not issue warrants for missed court dates on infractions (in general - some exceptions), and may not place a VC40509.5 hold on the persons drivers license as most other courts do.

However, VC40508A (failure to appear violation) can be an infraction, or a misdemeanor.  It always starts as a misdemeanor, but most courts reduce it routinely to an infraction, add a “civil assessment” fine and refer the total bill to a collection agency such as AllianceOne or GC Services.

When the court reduces the VC40508A to an infraction, the defendant has almost no rights to challenge the violation, because it is considered a civil, not a criminal problem (like a parking ticket - if its a civil fine, you are screwed). But with a misdemeanor, a defendant has more rights.

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The label of misdemeanor or infraction does make a real important difference for many people.  A misdemeanor conviction means you have a criminal record, and may have immigration consequences (such as denial of a permanent resident status).

Some people may be required to report a misdemeanor conviction to their employer or licensing agency, and some may lose employment or business opportunities if they get a misdemeanor conviction.

Misdemeanors are more serious than infractions, because they carry the possibility of jail time.  The US Constitution guarantees the misdemeanor defendant specific rights called “Due Process Rights” in the 4th, 5th and 10th Amendments.  The most important of these Due Process rights is the right to a jury trial when a person’s freedom is at risk.

In Santa Clara, it is different.  They have their own view.

Here, they refuse to reduce the misdemeanor 40508A violation to an infraction when a person pays the claimed fine by mail or by phone.   They don’t tell you that you have the right to a jury trial, or other Due Process rights you have when accused of a misdemeanor.  They just take the money and enter a misdemeanor conviction.

Santa Clara is very unique in this regard.  Most other California Courts interpret Due Process law as requiring that a defendant in a misdemeanor case actually “knowingly and voluntarily” give up his/her right to a jury trial before there can be a conviction.  Usually this happens with a misdemeanor “Waiver Form” that the defendant must sign and present in court.

Santa Clara ignores the waiver process for 40508A misdemeanor cases and does not tell defendants with VC40508a charges that they have the right to a jury trial.  In fact, it’s quite the opposite - the court clerks hide this fact from the defendants - along with the other Due Process rights guarantee to all misdemeanor defendants such as the right to confront and cross examine witnesses.  In my opinion, it’s a tricky way to screw people on traffic citations.

But as it turns out, it’s a good process for a defense attorney like myself, because there is work that can be done that will make a difference for the client on these cases.  Specifically:

Most courts will reduce the failure to appear charge to an infraction to prevent the defendant from demanding a jury trial, and from having the ability to refuse to allow a commissioner to hear the case.

By reducing the VC40508a to an infraction, most courts basically prevent defendants from having the rights associated with a misdemeanor, and thereby make it difficult for the defendant to get a court date on a failure to appear case.  They refuse to give them a court date, and just refer the fine to a collection agency for payment.  Because there is no threat of jail time with an infraction, they do not have to give the defendant a trial.

In Santa Clara, because they refuse to reduce the FTA to an infraction, defendants have the absolute right to an Arraignment court date, and to a jury trial.  Misdemeanor defendants also have the right to refuse to allow a case to be heard by a commissioner, and may demand a real judge.

Because of these rights, and the existence of a misdemeanor charge, a defendant with an FTA case in Santa Clara can go into court, get an arraignment date, and demand a jury trial with a real judge. And an attorney can do all that work for a defendant - and make the threat of wasted time in a jury trial credible.  If the attorney is getting paid to do a trial, its going to happen.

And my experience has shown me that courts do not want jury trials over infraction FTA cases.  It would be a giant, tremendous waste of the court’s time, and of the time of the every citizen who would have to spend 2 days in jury duty to hear a traffic ticket case.  When presented with a demand for a jury trial on a VC40508a case, it would be my expectation (and has been my observation in the past) that the court would reduce the misdemeanor to an infraction at that point to prevent a useless jury trial.

So in the future I will be recommending to my own FTA clients in Santa Clara that they do not pay they pay the Failure to Appear fine the court says is due, because it will result is a misdemeanor conviction.  Rather, I will usually recommend that we schedule an Arraignment, refuse the commissioner, and demand a jury trial.

If the court reduces the misdemeanor to an infraction to prevent a jury trial - Great! Good result.

If the court is stubborn and allows the jury trial - Great! Let’s see if they can get 12 every day people to vote for convcition. They need 12 citizens to vote gulty to win.  I only need 1 crazy person to vote “screw the government” to win.

I’ll give an update on how it all turns out in my next case.

In the mean time - here is some concrete tips that I can give to everyone with traffic infractions and VC40508A charges in santa clara traffic court:

1. Call the court clerk prior to paying and ask if your payment will result in a misdemeanor conviction;

2. Look up your case on-line (courts web site) before paying to see if there is a misdemeanor 40508A charge listed;

3. If you want or need to avoid a misdemeanor conviction for employment purposes, get an attorneys help because it is worth the money;

4. If you want to do the work yourself, schedule an Arraignment, appear in court, and ask the judge to reduce the 40508A to an infraction. If the judge says Yes - Great.  If they say no, then you can decide if you want to have a trial or not.

5. I would Refuse to allow a commissioner to hear your VC40508A misdemeanor case and demand a real judge (you will have to appear in court and make the objection verbally).

And whatever you do, do not assume there is nothing you can do if you have a failure to appear case in Santa Clara County Superior Court.

-Christopher Dort, Esq

More Info: What is  A VC40508A Charge? |

This article was written pro bono as a free self help community service.  It is not advice on your specific case, and should not be your only source of info on the subject.

Questions? Send them to cdort@dortlaw.com or Request a Free Case Review for Santa Clara County.

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Kangaroo Court? No Consistency in How Courts Handle Failure to Appear Cases.

How traffic courts deal with failure to appear cases differs greatly from courthouse to courthouse. In this article, Attorney Christopher Dort reviews the most common ways California courts handle a failure to appear on a traffic citation, and shows how to understand what is happening to a case after a missed court date.

When I was in law school, I once had to tell my trial advocacy professor that I had to miss a class because I scheduled a traffic court trial on one of my own tickets. Upon hearing this, my professor replied:

You want to go to Kangaroo Court instead of learning how to do a real trial?

10 years later, I think I finally figured out what that professor meant. You never know which way the traffic court kangaroo is going to jump, and you will probably get your butt kicked in a boxing match with a kangaroo.

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Today, the kangaroo is alive and well when it comes to failure to appear cases on traffic citations, but I’ve figured out the most common ways it jumps. Here is what you need to know to figure out what is happening if you missed a court date on a traffic ticket.

All traffic citations have a court date listed on the bottom of the ticket form, along with the courts address. When a person signs a ticket, they are making a legal promise to appear in that court on that day.

Once this ticket is signed, the court is not required to send any other notice to the defendant of a court date.

Many people make the mistake of thinking that they do not have to go if the court does not mail them a court date. The truth is the court is not required to send you anything once you sign a ticket.

If a defendant fails to appear on the date listed on the ticket, the court has a number of options on what to do, and what happens differs in a very confusing way from court to court. Here are the main procedures used in California traffic courts.

A Court May Elect to Treat A Failure to Appear As A Request for A Trial By Declaration.

A trial by declaration is a procedure by which a defendant can request that a judge review the paperwork related to a citation, and make a decision as to guilt based only on the paperwork.

When done correctly, the defendant and the police officer each send in sworn statements about what happened, and the judge reviews those statements and the citation, then makes a ruling.

If a defendant does not like the ruling on the trial by declaration, they have 30 days to request an in person trial. To get this second chance at a trial, the defendant must file a “Request for Trial De Novo” on the approved form, on time. If the defendant does not request a trial de novo on time, the case is over. The defendant must pay the penalty as imposed by the judge.

But there is a law that allows the judge to use this procedure if the defendant fails to appear for their court date, and even if the defendant does not request it. The law is California vehicle code section 40903, and it states a failure to appear can be considered a request for trial by declaration.

If the court elects to treat the failure to appear this way, the court reviews the ticket, and nothing from the defendant at all. Because there is no evidence from the defendant, the defendant has no say in what happens.

The court finds the defendant guilty, generally imposes a harsh penalty and the case is closed. No further court appearances are allowed. The defendant is sent notice of the decision and penalty to the address on the citation, and if the penalty is not paid on time, more serious consequences follow.

If this happens, there is a solution. The defendant may request a trial de novo within 30 days and get a new court date to try to do something different with the case. But the defendant must take action within 30 days.

This procedure is used in Calaveras County, in Wastonville Courthouse, Solano County, and others on traffic infraction only cases (not in misdemeanor cases). But other counties take a completely different approach.

Some Courts Suspend a Defendants Drivers License When There is a Failure to Appear.

Other courts take a different approach, and try to prevent giving the defendant a second chance with the “Trial De Novo Procedure”.

They do this by using California Vehicle Code section 40509.5 instead. That statute (or law) allows the court to suspend a persons drivers license with a “VC 40509.5 hold” until the defendant appears in court to take care of the case, which is kept open.

Most courts that use this procedure also impose a new fine called a “civil assessment” to the case as part of the VC40509.5 action.

In courts where they impose a VC 40509.5 hold for a failure to appear, the defendant still has the right to demand a trial and contest the citation. However, the timing of when the court releases the hold is up to the judge.

In some courts, such as Los Angeles County Superior, the courts will release the drivers license hold once a court appearance is made. Other courts, such as Sacramento County, may require the defendant to fully close the case and pay any outstanding penalty before the Vehicle Code 40509.5 hold is released and the drivers license cleared.

However, often when there is a VC 40509.5 hold (and no warrant or extra charges), the defendant can end the case without a court date by paying the court or a private collection agency in full for everything. Such payment is an admission of guilt to all of the violations, but will end the case. But the defendant does have the option of setting a court date and demanding a trial.

Once a 40509.5 hold is released by the court, the drivers license does not automatically become valid. The defendant must first visit DMV to get a valid drivers license re-issued. Many people skip this step (because the kangaroo doesn’t give them clear instructions), and later get into deeper trouble by driving on a suspended license - even though the original case is cleared.

If you had a VC 40509.5 hold, call DMV to ensure your license is valid. You may have to go to DMV to get a new license.

Some Courts Will Add A New Misdemeanor Failure to Appear Charge to the Case.

California Vehicle Code section 40508a makes it a misdemeanor crime to fail to appear after signing a promise to appear. This statute provides for a penalty of upto 6 months in the county jail. And if convicted of the VC 40508a misdemeanor, the defendant will have a new conviction on their criminal record that will be visible to potential employers, and anyone else doing a background check.

Some courts, such as Riverside County, will add this new, more serious violation to a simple infraction case when the defendant misses a court date.

Generally, when the new 40508a misdemeanor is added, this prevents the Defendant from contesting the original violation, because even if they somehow beat the original violation, they will get convicted of the more serious misdemeanor.

Because of this fact, some courts use the VC 40508a violation as a way to prevent defendants from fighting a violation after missing the orignal court date listed oon the citation.

(Remember - the fact that the court did not mail you anything is not a defense to a failure to appear charge. The court is not required to send you anything after you sign a promise to appear. It is usually a mistake to fight a traffic violation with a misdemeanor VC 40508a charge if you do not have a defense to the failure to appear charge. You might end up beating the infraction, and getting convicted of a misdemeanor instead)

To clear up a case with a VC 40508a misdemeanor charge, a defendant must appear in court.

Some Courts Will Add A Failure to Appear Misdemeanor and Issue a Bench Warrant.

Some counties take a harsher approach. They will add the misdemeanor failure to appear charge under vehicle code 40508a, and at the same time, issue a warrant for the arrest of the defendant who missed a court date.

When this happens, the defendant must appear in court to get the warrant recalled. Some judges will take defendants with a warrant into custody right away. Judge Hastings in Santa Clara County is an example of a judge who routinely takes defendants into custody right away when they have a warrant. Some judges will recall a warrant without much trouble once a defendant appears in court.

There is no consistency on how to solve this problem in the different county courts. In some courts, such as Sacramento, once a warrant is issued, the court will not give you any information on it, except to tell you to turn yourself in at the Sheriffs Office.

Other courts do it completely differently. For example, in San Diego County, an Attorney can get a warrant recalled on a traffic court or misdemeanor case by sending a simple fax requesting a court date. (why don’t other courts use this procedure????)

Courts such as Riverside County, and San Bernardino County issue bench warrants on nearly every failure to appear case. Some courts, such as Los Angeles, will only issue a bench warrant if the judge is pissed off at the defendant.

Typically, a defendant with a warrant for a failure to appear still has the right to demand a trial. If there is a misdemeanor failure to appear charge, the defendant has a right to a jury trial.

Some Courts Will Do Everything, Suspend a Drivers License, Issue a Warrant and Add a Failure to Appear Misdemeanor.

Some courts will do everything listed above in some failure to appear cases. An example of such a court is Riverside County.

So the bottom line is this:

Defendants with a failure to appear charge need to figure out which procedure their court has used on their case to find a way to solve the problem. Every court is different, and there may be differences even from judge to judge.

To figure out what is going on in your Failure to Appear case, you may have to do a little boxing with the kangaroo. Here is my coaching advice:

I recommend calling the court clerk where the case is located and asking these detailed questions:

1) Is there a drivers license suspension?

2) Is there a VC40508a charge?

3) Is there a bench warrant?

4) Do I still have the right to a trial?

5) How do I Schedule a Court Date?

By asking these questions, and demanding real answers from a knowledgeable clerk, you can find the path to solving the problem.

If you are doing it on your own - beware of the kangaroo’s punching combinations:

1) most courts have separate traffic and criminal divisions. You may have to check with both divisions separately to find your case;

2) most court clerks in the traffic division are poorly trained, if at all, and are prone to saying things they do not understand. If you have to, ask to speak with a court clerk over 20 years old, preferably with a college degree;

3) If you do go to court to get something done, get written proof you were there. If you pay for something at the court, get proof you paid and keep it in a safe place.

4) If the court tells you to call a collection agency, keep detailed notes about the conversation, and ask them very clearly if you still have the right to a court date. If they tell you “no”, chances are they are giving you false information. Double check with the court.

5) Always make sure your address is current with the court and DMV. And always, always check with DMV to ensure your license is valid if before driving if you have a failure to appear case.

At Traffic Court Pros.com, we offer free and confidential problem reviews from licensed traffic court experts to help out. Let us show you why it makes sense to have professional help.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

Need help with a traffic court problem, Suspended License, Failure to Appear or Warrant?

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Was Your Failure to Appear a Misdemeanor or an Infraction? Make Sure Your Get a Clear Record.

Some traffic court violations always start out in court as a Misdemeanor charge, but can be reduced to infractions by the court. In many failure to appear cases, it is not clear to traffic court defendants whether they were convicted of a misdemeanor, or the less serious Infraction version of a violation.

Sometimes, after the case is over, the Department of Motor Vehicles will get it wrong, and list the case as a misdemeanor conviction on a driver’s history report, when in fact it was not a misdemeanor. Getting a clear record of a case from the court when it ends can protect a driver from this messy problem.

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The details of the problem are these:

There is a big difference between a Misdemeanor Conviction and Infraction Violation. Misdemeanors are real crimes that have a maximum penalty of up to one year in the county jail. Misdemeanors show up on background and criminal records checks as criminal convictions.

Infractions are much less serious. They are not considered crimes, and carry only a fine as the maximum sentence. They do not appear on criminal records / pre employment screenings.

Some Vehicle Code violations, such as a failure to appear in court (Vehicle Code section 40508a), and driving without a valid license (Vehicle Code section 12500a) always start out as a misdemeanor charge, but can be reduced to an infraction by the court when a defendant pleads guilty or no contest.

Many traffic court commissioners and judges will routinely reduce a failure to appear charge under 40508a from a misdemeanor to an infraction if a defendant shows up in court voluntarily and resolves their case efficiently but pleading guilty or no contest.

When a misdemeanor failure to appear charge is reduced to an infraction by a traffic court, the penalty is generally a simple fine. The court’s record of the case is changed from a pending case with a Vehicle Code section 40508a Misdemeanor charge, to list a conviction of a Vehicle Code section 40508a “Infraction”. The case number and the vehicle code violation number (the statute) are the same, but the classification is very different than when the case started.

The court then notifies the DMV that the case is no longer pending, and ended as a conviction.

Somewhere along the line things can get mixed up. The California Department of Motor Vehicles does not always correctly document what happens in court. At TrafficCourtPros.com, we have noticed the DMV at times mislabels failure to appear convictions as misdemeanors, when they were reduced to infractions by the court.

Our theory (based on opinion) as to why it happens it that the court employees and DMV employees responsible for the communications do not understand the difference between a misdemeanor and infraction.

Because a failure to appear charge under Vehicle Code section 40508a always starts out as a misdemeanor, DMV gets notice of a misdemeanor failure to appear form the court and notes it on the drivers history record for the driver as misdemeanor.

If the driver is later convicted in court of a 40508a violation reduced to an infraction, the DMV gets notice of the conviction from the court, and changes the driver’s history record to reflect a 40508a conviction. But the bad news is they often fail to correct the listing from a “misdemeanor” to an “infraction” on the DMV record.

The result is that although there really was not a misdemeanor conviction in court, the DMV incorrectly lists the driver of having a misdemeanor 40508a conviction.

If the driver does not have proof that the court reduced the misdemeanor to an infraction, getting a misdemeanor conviction removed from DMV records can be a nightmare.

But if the driver gets a clear record of the conviction on a court abstract at the time the case ends, the problem can be cleared quickly. All the driver has to do is take the court abstract to a DMV office.

Unfortunately, a common and serious mistake made by people in traffic court is that they fail to clarify whether or not they are being convicted of an infraction or a misdemeanor while in court.

So her is our Newest Traffic Court Self Help Tip: If you are going to court on a failure to appear charge (40508a), get a clear record of the violations you are convicted of when the case is over. Keep copies of the paperwork in a safe place.

If you are not sure if you are being convicted of an infraction or a misdemeanor, ask the judge to clarify it. It’s your right to know for certain. Get proof and check to make sure DMV has it right. Contact the DMV Driver Safety Office near you for details on what they have listed on your record.
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-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

Need help with a traffic court problem, Suspended License, Failure to Appear or Warrant?

Traffic Court Pros.com can help! Get a Free Case Review (Click here)

Or research your issue with our Traffic Court Pros.com Custom Search:

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