One of the most common forms of arrest or bench warrants in California Criminal Courts today are warrants from DUI or driving under the influence cases (Veh. Code sec. 23152). These DUI warrants are common problems that we see often at TrafficCourtPros.com.
Here is basic information anyone with a warrant problem in CA needs to know. And because most other states follow a similar format, this information may be generally useful for understanding DWI/DUI warrants in other states.
There are basically 2 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.
|If you miss the first court date, called the “Arraignment”, the court will usually issue a bench warrant. If a defendant fails to comply with a term of probation, such as failing a drug test, the court will also issue a warrant.|
The path to solving the problem is different for each cause. Step #1 is figuring out which type of problem caused the arrest or bench warrant.
Failure to Appear Problems.
Most DUI warrants result from missed court dates. Usually, it is the first court date that gets missed (called the Arraignment).When this happens in California, the Court will normally issue a bench warrant under authority of Penal Code sec. 853.7 or Vehicle Code sec. 40508a.
If the Defendant posted bail to get released from jail prior to the Arraignment, the Court will usually also revoke the bail bond, and issue an order setting a new bail at a higher amount.
To get the bench warrant recalled after a missed court date, either the defendant or an authorized Attorney representing the defendant must appear in court in person. With the right facts, an experienced Defense Attorney can get a failure to appear warrant in a DUI case recalled without the client having to appear in court or go to jail.
In some cases, the client must go to court with the Defense Attorney to be present in the courtroom before a judge will consider a request to recall an arrest or bench warrant. Some defendants with warrants do get taken into custody right away, but those who take voluntary action to appear in court avoid the worst consequences of a warrant problem.
Once in court, the Attorney or Defendant must ask the Judge to recall the warrant. If bail has been revoked, the Defendant must ask the judge to reinstate the bail bond. If the Defendant used a Bail Bond company to borrow the money for bail, Defendant must get written permission from the Bail Bond company to allow reinstatement of bail.Usually, this is a two step process:
1) getting the court clerk to set the case back on the court Arraignment calendar; and 2) appearing in Court to ask the Judge to recall the warrant.
If everyone agrees, it is easy to get the warrant recalled and the case back on track. But there is a real possibility of jail – especially if there are prior offenses or a history of skipping bail.
This work takes skill and experience to do correctly and fast. I’ve had cases where I successfully done this work on less than 10 minutes. But then, .. .. .. sometimes things go bad. }; A defendant can actually do it alone, but it is without question better, easier and faster with experienced professional help.
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.
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. But often, in my cases, the failure to appear charge is dismissed in the interests of justice in the end. Not always, but it happens. If done right, it is possible to escape a failure to appear warrant on a DUI charge with no extra penalties. Not guaranteed, but possible.
Probation Violation Problems:
Most first time DUI defendants in CA are found guilty in the end (by pleading guilty). Most first offenders are given a probation sentence that includes specific terms that are orders of the court the defendant must follow.
Typical DUI Court probation varies, but usually 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.
More and more common is a new term of 5) install an alcohol detection device on any car you own or operate.
If a Probationer (which is what you are called after pleading guilty) 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 most frequently happens when the Probationer gets caught driving (vehicle code section 14601.2), or if they fail to complete the Sheriff’s Work Program or court ordered community service on time. A missed fine payment can also result in a warrant and probation violation, as can a new criminal case in a different court.
Once probation is revoked in a misdemeanor or Driving Under the Influence case, the court has the power to re-sentence the defendant on the conviction. Basically, the Judge can erase probation and start over. And he/she can re-start with a jail term. (See our Lindsay Lohan Stories)
There is a second problem. The Defendant can be charged with a separate Probation Violation, which is a crime that can bring separate jail time. And if convicted of a probation violation (PV) it can prevent a Defendant from getting the conviction expunged after probation ends. Thus the probation violation part of the problem is very important – should not be neglected.
To clear a probation violation warrant, a Defense Attorney or Defendant going alone must:
1) get the case back on the Court’s 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.
The judge has the power to say yes or no. So from an Attorney’s point of view, making these requests is a lot like selling the cars and trucks I used to sell at good ‘ol Love Chevrolet in Folsom. Yes, it used to be in Folsom. Before people there started getting arrested and . . . .
To get a case on the courts calendar, an Attorney would go to the Criminal Division Court Clerk’s 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 some courts, the really efficient courts, an Attorney can do this by fax or telephone call only. (Thank you Ventura County Court Clerks!)
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. Some Judges will recall a DUI warrant based upon an Attorney’s appearance. Some will require the Defendant personally appear and post bail.
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 few 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. The burden of proof on a probation violation is very low.
In general, a Defense Attorney’s goals on a DUI warrant problem are to:
1) get the warrant recalled without jail or new bail if possible; and
2) talk the Judge into a reinstatement of probation under the same terms and conditions as existed originally;
3) and 3 avoid admitting a Probation violation if possible.
In all bench warrant or arrest warrant cases, it is very important to get into court as soon as possible to solve the problem. Everyday counts. 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 a Defense 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?
In most common Driving Under the Influence cases without a warrant, an attorney can appear in court for the Defendant and handle the entire case alone if the Defendant wants to plead guilty. (under authority of CA Penal Code section 977).
If a warrant has been issued for a probation violation, or failure to appear, an attorney can appear in court for the defendant and request that the warrant be recalled. In most cases, an Attorney can get a routine bench warrant recalled without the client having to appear in court, if the problem is recent.
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, 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. An experienced Defense Attorney may be able to give the client a good idea of what to expect.
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.
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