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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