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What is a VC 40508a? It is a Misdemeanor Failure to Appear Charge.

Posted on January 18th, 2008 Christopher Dort 8 comments

A violation of California Vehicle Code section 40508a is commonly known as a failure to appear, or FTA. It shows up as a plain 40508a listing on DMV and court records, but confuses many people. Here is an explanation and info on how attorneys address the problem.

A 40508a violation is a misdemeanor charge that the court adds to a case when they think a person has missed a court date after signing a promise to appear. A Vehicle Code section 40508a violation usually also triggers the issuance of a bench warrant from the court. Often, it becomes the most expensive, and problematic part of a case.

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How does it start?

When a person receives and signs a traffic of misdemeanor citation in California, they are generally signing a legal promise to appear in court on the date listed on the citation. Once the citation is signed, the person is required to show up in court on that day, unless they admit guilt and pay the fine for the citation in full prior to the date.

Vehicle section 40508a makes it a misdemeanor crime to break this promise. There is no requirement that the court send a person any notice of the court date if they have signed the citation, although some courts will send out courtesy notices. The only time the court is required to seend out a notice of a court date, is if they change it from the date on the citation.

If the date listed on the citation comes and goes, and the person cited does not show up in court, the court generally does three things:

1) add a new misdemeanor charge to the case titled a violation of Vehicle Code section 40508a;

2) they issue a court order to law enforcement stating that the defendant should be arrested and brought to court (this is known as a bench warrant or 40508a warrant); and

3) they place a hold on the defendants California driving privilege which DMV turns into a drivers license suspension (40509.5 hold). This hold may affect out of state drivers licenses.

If a traffic citation started as plain traffic infractions, but turns into a failure to appear case, the VC 40508a violation and warrant become the most important part of the problem. They change the case from a fine only problem, to one that may result in jail time and a misdemeanor criminal conviction. The 40508a statute (law) states that a person may be sentenced to 6 months in the county jail upon a conviction.

Jury Trial is Available for a Misdemeanor

The bench warrant that comes from a traffic court FTA is known as a VC 40508a warrant, because it was issued under authority of California Vehicle Code section 40508a. The new charge for the Failure to Appear is known as a VC 40508a violation.

However, everyone charged with a VC 40508a violation is presumed innocent until proven guilty. Persons charged with a 40508a misdemeanor also have the right to a jury trial.

There are only 2 ways to be convicted of the violation: 1) admitting guilt by pleading guilty, or no contest, or by losing a trial. Just because a person is charged with an FTA violation does not mean they are convicted.

Vehicle Code section 40508a always starts out as a misdemeanor, but can also be considered an “infraction” instead of a misdemeanor if the court so chooses. Infractions are less serious than a misdemeanor, and carry a fine as the only possible penalty.

Clearing Vehicle Code section 40508a Warrants

The warrant that comes with a 40508a violation exists only until the defendant appears in court. Once a court appearance is made, the warrant gets recalled. The violation may remain on the case, but the warrant goes away after a court appearance. The purpose of the warrant is to get a defendant into court to address the charges.

Because persons charged with a 40508a misdemeanor are entitled to a jury trial, the courts are often willing to reduce the charge to an infraction to encourage a guilty plea and avoid wasting court and law enforcement resources in a pointless trial. When this happens, the defendant avoids a misdemeanor conviction, and avoids the penalties that would come with such a violation.

Avoid the Classic FTA Mistakes

Many people in traffic court with 40508a violations make the classic mistake of pleading guilty to the 40508a misdemeanor without asking the court for a reduction to an infraction. This can be a costly mistake in terms of fines, and your criminal record.

An effective attorney handling failure to appear cases will use the threat of demanding a jury trial as leverage to negotiate a reduction or dismissal of the 40508a charge. Typically, it works because the court does not want to waste time on such a minor (in the courts eyes) offense. Because of an attorney’s ability to conduct a well prepared and time consuming jury trial, the courts are usually somewhat flexible.

Defenses to 40508a Violations

Defense to a 40508a charge that should result in a complete dismissal are: 1) the court changed the date listed on the citation and defendant did not sign a new promise to appear; 2) defendant appeared at the clerks office on the date listed on the citation, but the court did not have the case ready for a court appearance; and 3) the defendant was on active duty with the military and was not able to attend.

Don’t confuse excuses with legal defenses. Excuses do not work, and may dissuade the court from reducing the misdemeanor to an infraction. Excuses that are never effective defenses (but often tried) include: 1) defendant was homeless; 2) defendant had family problems (such as kids, or family illness); 3) the court did not send a courtesy notice; and 4) defendant was out of town for work.

Misdemeanors Require Defendants Consent for a Commissioner

Many traffic courts use Commissioners instead of judges to hear traffic court cases. Commissioners are really just employees of the court, and are not fully trained and appointed or elected judges. The law states that a person charged with a misdemeanor must consent to the use of a Commissioner on their case.

This fact can work to a defendants advantage when charged with a 40508a violation, because the defendant can refuse to allow a commissioner hear the case, and demand a real judge. Most real judges in Superior Court are handling the more serious felonies, and just want to end the minor cases as fast as possible. When a felony judge is presented with a traffic infraction case that includes a 40508a misdemeanor, they may offer a dismissal just to get rid of the case. And a Commissioner may offer a reduction to an infraction just to avoid sending it to a busy felony judge.

Penal code section 977 allows an attorney to appear in court for a defendant on 40508a cases, even if there is a warrant. Because of this, an attorney can do this work for a client, and the client can avoid court.

If an attorney is successful in getting a misdemeanor reduced to an infraction, and gets a warrant recalled without the client having to miss work and appear in court, the attorney has done the client a great service. This is why having an attorneys help on a 40508a case often makes sense.

Whats the moral of this story? Don’t just blindly plead guilty to a 40508a violation. Work on getting it reduced or dismissed, and consider using an attorney to do the work. It may be very cost effective.

A similar Failure to appear statute is Penal Code section 853.7, which is teh statute that applies for an FTA on some non traffic violations, such as domestic battery or assault.
-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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8 Responses to “What is a VC 40508a? It is a Misdemeanor Failure to Appear Charge.”
1. Daniel July 8th, 2008 at 11:06 pm
  
  Homelessness A Defense to Failure to Appear?
  
  I have a question about me missing my appearance. I know you said being homeless is not a defense for 40508A Violations, but what if it can be proven with documentation from non-profits and another county’s social services that I was homeless and had no way of returning for an appearance?
  In my case, I became homeless, got out of the LA area via a friend who bought me a bus ticket to Monterey County, and I was placed in a non-profit homeless transitional program (named McHOME–McHOME is an off-shoot of Interim, Inc, the parent non-profit). They can verify I was living off of $138 a month after rent and $138 a month in food stamps for about a year. The Mental Health Dept. of Monterey County can also verify this status.
  
  Also, I filed an extension on 04/23/2006, which was approved online with the LA County Court website, because I was x# of days short of the minimum required to file a Trial by Written Declaration. Also, I made sure to inform the Court Clerk of my new mailing address at MCHOME in Marina CA. I waited to receive the packet from the Court Clerk with the Trial by Written Decleration Form and instructions, but I never received it. Since I didn’t have the money to pay the fines, I didn’t push too much on the follow-up. Expected, a 40508A was issued on 10/30/2006.
  I moved to San Francisco about 14 months ago because I found a job through a connection of a friend and was able to get out on my own fairly quickly, Now I make enough money to take care of the penalties/fees/etc., but not enough to physically make an appearance at the Long Beach Courthouse. I can also only afford to make monthly payments to pay off my obligation.
  I recently called (more than once) and talked to the Court Clerk’s office to see if there is someway to handle this from San Francisco, but they say that I have to come down and appear because that’s what the file says in the court’s computer system. Am i just screwed on this or is there a way to get this legally handled with my limited, but better than when I was homeless, finances?
  
  Answer: Well, I did not make the rules. But, generally, being broke or homeless is not a defense to missing a court date. Lots of broke people go to court everyday in California. And the fact that you have proof that someone helped you move out of town is not a defense either.
  
  On the other hand - maybe you were kidnapped, and left town involuntarily? It is possible to be kidnapped without knowing it.
  
  But the problem it that in order to challenge your fine or case, you have to get there or hire an Attorney to go for you. There is no way to challenge a criminal case without going to court. - Attorney Christopher Dort.
2. Kevin August 28th, 2009 at 11:04 am
  
  Thank you so much for your Help!
  I tried looking on the DMV website, but I found it to be too dificult and complex. Your website has opened my eyes.
  thank you…
  
  P.S: I better get my Butt to court ASAP!
3. Pardeep September 4th, 2009 at 2:32 am
  
  Dear Christopher,
  
  I had an arraignment on June 15th, couldn’t make it that day. The clerk told me latest I could come is 7 days later on the 22nd.
  
  So I came on 22nd, please not guilty and asked for a trial by written declaration. The judge granted it and asked if I can pay bail. I said I don’t have the $201 bail today, may I have a 1 week extension to pay it. She replied no, just come back when you are ready. So I said I’ll be back in a week.
  
  A few days later I got a letter saying I had failed to appear. I went back to the court the next day, they said my appearance on the 22nd resulted in a no action status, which is a FTA with a $648 civil assessment and penalties. So they setup another arraignment for me for Aug 24th.
  
  Again I couldn’t go to court on the Aug 24th, but went the following week on the 31st within the grace period.
  
  The judge asked if I had the bail, I said not all of it, can you remove the FTA since I was just following your instructions. I asked you for an extension, you denied it and said return when you’re ready, but you didn’t inform me this would result in an FTA. I told her I have paperwork to prove I didn’t fail to appear, that I was present on June 22nd, with her notes on my appearance and status that day. Well the judge got angry and said she didn’t want to argue with me and didn’t want to talk to me anymore.
  
  So I discovered she again had me in a no action status. So I waited until the end of the arraignment, but she wouldn’t talk to me.
  
  So I had to come back and register for the hearing in the afternoon. In the afternoon the judge made sure I was the very last person she spoke to. But when my turn came, she said I’ve already seen him twice and started to walk out of the court. So I said in a loud and clear voice “Hey, I am here to please not guilty and post bail.” And she said “Oh, why didn’t you say so?” and I replied because you were prejudiced and didn’t let me get a word in edgeways. She said ok, ok, and didn’t want to hear any more. I asked her to remove the FTA, and she refused, saying this can be handled on the trial date.
  
  So I have a trial date now on Oct 15th, paperwork to prove I did appear on June 22nd. My questions for you are:
  
  1. Will I be able to get the FTA removed.
  2. If it can be dismissed, will they refund the civil assessment and penalty of $648
  3. Is it possible this could be a misdemeanor on my record.
  4. Will DMV prevent renewal of my license while this is pending?
  5. If I am unable to get this dismissed by the same lady who got me in this pickle, can I appeal it before other judges.
  6. The woman who refused the extension is a commissioner, not a judge. Can I request a judge, thereby removing her from my case since she seems prejudiced.
  
  I already filed a 170.6 peremptory challenge on my arraignment last week, but the commissioner declined stating it is untimely.
  
  This pertains to the Beverly Hills Courthouse, there seems to be a class racism there, I’ve never seen such a malevolent execution of justice before. Thank you for your feedback on this matter.
  
  Best,
  Pardeep.
4. xris April 25th, 2010 at 4:41 am
  
  Please don’t play the racism card. It does nothing for your case or anyone elses and in fact will make the situation worse. There is no racism here just a lack of understanding on your part.
  
  1. You don’t call a judge “hey”. That will piss them off.
  
  2. You need to learn how to spell as I assume if you think plea is the same thing as please when your writing this then you have big problems.
  
  3. Your not accepting responsibility for you getting the ticket and further pissing the judge off.
  
  4. Again- NO RACISM here just your lack of research. In court you please a)guilty b)not guilty c)no conest. You can not plea not guilty and then not have the money. Simple as that. If you plea not guilty you need the money up front
  
  5. Biggest piece of useful information I have typed here is below and if you take anything from this let this be it:
  
  Judges are rare breeds of human. They are very head strong and do not EVER like to be proven wrong, disrespected or question. You dont EVER start speaking to a judge by showing they are wrong and you are right.
  
  ***NOTE: as I just remembered, you showed the judge papers that prove your innocents during a guilty-not guilty day? If this is correct, Im sorry but I (as a very frequent traffic court goer) get so fucking annoyed by people like you who simply do not understand the judge or balif when they say at the begining of court that this is not the day you present evidence its the day you plea and thats it yet despite that you “type” of people do IT ANYWAYS!!! WTF is wrong with you?!?! that is why traffic court takes so long- BECAUSE OF YOU
  
  now that im done with my rant… I strongly believe that was why you got the response from the judge you did because you didnt follow directions.
5. Shanna Christensn April 26th, 2010 at 5:36 pm
  
  I was wondering how to handle this situation. My husband got a ticket for driving without a liscense on 1/02/10 his court date was set for 3/6/10 which was a Saturday s he didnt go because of course court is not open on Saturday. I looked at the county website yesterday and discovered they gave him a FTA. The website also says that his ticket was issued on 2/2/10 not 1/2/10 and that his court date was on 3/16/10 and not 3/6/10. I was wondering how many days after you get a citation does the county (san Bernardino County) have to file it and how do we fix the courts errors and clear my husband of his FTA?
6. Christopher Dort April 26th, 2010 at 10:58 pm
  
  Xris - I think you spent too much time in court and you blew a fuse. It’s OK - happens to the best of us. You’re right though. People just don’t listen and the judges se it so much that it drives them crazy. Imagine the same same idiot saying the same crap day after day case after case. The traffic court judges don’t see people in front of them, they see black shapes and simple math problems. 0s and 1s, on off, yes, no - spit out the total fine, next!. Since we’re on the subject - what really drives me crazy in traffic courts - after hundreds of appearances in dozens of counties is: 1) clerks telling me something that I know is not true; 2) handwritten paper work from the court clerk that does not show the total fine due; 3) the downey courthouse smell; 4) when judges start court at 9:15a.m.; 5) courts that do not have on line access to criminal case info; 6) people saying things in court that are completely irrelevant to the issue (like: “I was homeless”); 7) people who think they cant go to jail because they have to work; 8) the filthiness of the San Bernardino hall of justice; 9) collection agency employees who pretend to be court employees; 10) judges who take more than 30 seconds between cases; 11) people telling their defense to the court clerk through the bulletproof glass like it will work for them; 12) the headache I get after every court appearance; 13) court employees who dont understand Attorneys are sworn officers of the court; 14) that fuckhead Sheriff’s Deputy at the Vista Courthouse who once told me “The graveyard is the only ‘right place’ for Attorneys”; 15) courthouses with time limited parking, etc.
7. Matt August 18th, 2010 at 10:49 pm
  
  Today I went to get my permit and I found out I have a 40508A. The violation date was 5/03/06, and there are 2 reasons I did not appear: 1) I did not know about it (I know this isn’t a valid defense and 2) I was out of state, placed in a residential treatment center by my parents and school. I am 18 years old now, and I was 14 at the time. Is being forced out of state, and then being forced to stay there, a valid defense? What should I do to clear this all up?
8. Christopher Dort August 24th, 2010 at 6:15 pm
  
  Matt,
  
  I cannot tell what court this is in, but you maybe able to just pay the fine and end the problem completely. Contact the court clerk at the courthouse were the case is pending to see what the “Bail” is, and whether or not you can schedule a court date. A court date might be a waste of time if the bail is below $500.
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