Common criminal or traffic court bench warrants are court orders that arise from a problem in a criminal case. The process to get a bench warrant recalled in a misdemeanor case differs slightly between California Courts.
Without the benefit of a defense attorney, Defendants with a misdemeanor warrant have a hard time getting their case back on track without getting arrested. Some courts will just tell defendants with a warrant to “Go to the Sheriff’s Department”.
|Once at the Sheriff’s Office, the unhappy Defendant gets technically arrested, and the Sheriff’s Department arranges a court appearance for the defendant. This is the typical procedure for a Defendant without an Attorney trying to clear a warrant in Sacramento County. Other counties vary in procedures. |
However, if you can hire a Licensed Attorney to represent you, it is a whole different ball game. A private Defense Attorney hired by the Defendant can do nearly all of the court work for the Defendant in most misdemeanor cases.
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And because a Licensed Attorney is required to make all court appearances with a criminal client even if the client is gone, the judges rarely require a payment of bail on a warrant when there is a Defense Attorney attached to a case. The court knows the attorney is bound to the case, and to show up in court.
When I handle a case with a warrant for a client, regardless of the charges or the court location, I usually follow the same process summarized below.
I. The Primary Goal in a Warrant Case is Usually to Get the Case on the Court’s Calendar.
When a court issues a misdemeanor warrant, they almost always also drop the case from the court;s calendar. To get a warrant recalled, most of the time a Defendant must get the case back on the court’s schedule somehow, and then ask the judge to recall the warrant.
When a Defendant with a warrant gets arrested at the side of the road, the police schedule the court appearance or the defendant. When a defendant with a warrant hires a bail bond company to post bail for them, the bail bond company schedules the court date for the defendant. But neither the bail bond company or the police will help the defendant talk their way out of jail once in court. Once a Defense Attorney will do that for the defendant.
A good defense attorney can often get common misdemeanor warrants recalled without the client actually have to appear in court at all and will help resolve the case completely, correctly.
II. Collect All Available Information on the Case.
To get the case back on the court’s calendar, an Attorney must collect the info needed to get the court clerk to find the case file. Usually this means:
1. Case Number;
2. Courthouse location (some counties have several courthouses)
3. Division of the Court (Criminal, or Traffic);
4. Original charges;
5. Reasons the warrant was issued (if you can find out); and
6. the bail setting if any.
Frequently when I handle a warrant case, I can get this information from the client, the court’s web site, and from experience. Sometimes, in some difficult courts, an Attorney has to call a court clerk to figure out the details need.
III. Ask the Court Clerk to Set the Case on the Court’s Calendar.
Getting into court as soon as possible is usually my goal. But the case has to be placed on the court’s schedule by the court clerk before a requires to recall the warrant can be made to the judge.
In some courts, a Defense Attorney can make a written “Calendar Request” for a misdemeanor case with a bench warrant by fax, and thereby get the case on the court’s schedule right away. In some courts, there is a local “Calendar Request Form” as in Riverside for example.
In many misdemeanor warrant cases – such as a missed court date on a DUI case where the was no bail forfeiture – a court clerk can recall the warrant at the court clerks office once a court date is set. No arrest or bail required. Just an attorney’s signature stating they will show up in court. San Diego County Superior is one court where an Attorney can get some warrants recalled and court dates set by fax or telephone. Sadly, getting a warrant case “on calendar” is not that easy everywhere. The process varies from court to court.
In Santa Clara County for example, there is no online access to criminal case information. And to get a warrant case on calendar, an Attorney must personally go to the courthouse and get a judge’s signature on a Local Form for a “Calendar Setting Request” to add a case to the court’s schedule. The court also requires a 48 hour waiting period after getting the judge’s signature, before the case can be heard.
I have notes on the process in many courts throughout California, and review them before coming up with a plan.
IV. Once in Court, Request the Judge Recall the Warrant without the Client Present.
On misdemeanor warrant cases, no matter what the original charge was, I always try to appear in court without the client first, and try to get the warrant recalled without the client first. It’s much better if I can get it done without the client. I try and go right away, because every day counts in a warrant case. If I can, I will go the same or next day if I absolutely have to go in person.
A good strategy is to get into the courtroom early, get the judge to call the case early, and then tell the judge:
1. Client realizes this is a problem;
2. Client is 100% committed to solving the problem correctly, voluntarily;
3. Client has hired defense council to help resolve the case correctly;
4. Client wants to solve the warrant problem right now if possible;
5. We want the case back on track right now.
Generally, that works. The judge recalls the warrant, and schedules the case for whatever comes next in line (trial, sentencing, further probation, etc).
Of course there can be complications. A bail forfeiture is a bad fact to deal with. Usually in a bail forfeiture the court will require the Attorney to get the Bail bond company to reinstate the bail and notify the court of their position on releasing the Defendant again.
There can also be complications like prior probation violations, or simply a judge who refuses to recall warrants when the defendant is not present.
And of course, every once in a while, the Defendant with a warrant really does have to do jail time no matter what the Attorney does.
If necessary, if the judge requires it, if there is no way to get the warrant recalled without the client present, I will tell the judge:
“I would like to schedule a motion to recall this warrant ASAP and I will come right back with the Defendant here in person as the court asks.” (or something like that).
V. If Necessary, Come Back with Client.
If I have to return with the Defendant to make the warrant recall request again, I usually add a section to my warrant recall speech to the effect of:
“Here he is in person. I brought him here in person to this court to make this request just as the court required. And he understands this is a serious problem. He is here to take care of it correctly. . .” etc.
Judges do not want to take misdemeanor warrant Defendants into custody if there is a way around it. Jail is not a good use of resources to deal with a misdemeanor defendant. To address this concern, I often focus on convincing the judge the Defendant will follow all of the judge’s orders exactly, and that he has no reason or desire to hide from the court.
VI. Once Warrant is Recalled, Start Working on a Global Disposition of the Case. (End to the Case)
When a Defendant hires an Attorney to take on a case with a Warrant, the defense attorney is generally required to handle the whole case, not just the warrant part of it. Because of this, once the warrant is recalled, the attorney must start working on ending the case entirely somehow.
After the warrant, the danger of immediate arrest is over. But the case continues on to whatever stage it was at when the warrant was issued. Most warrants are the result of a missed court date prior to trial. In such a case, once the warrant is recalled, trial is scheduled.
If the warrant was the product of a probation violation, the Attorney needs to try to talk the judge into reinstating probation after the warrant, and allowing the Defendant to cure the problem.
Sometimes a defendant who has missed a pre trial date just wants to end the case after the warrant is recalled. In these instances, a Defendant can just plead guilty if they want to while in court, or later through their Attorney’s appearance at a “Dispo Date” as it is called.
Sometimes a prosecutor in a misdemeanor case will add a new charge to the case for a missed court date that must be dealt with even after the warrant is recalled. Yes, even if a warrant is recalled, a failure to appear charge may still be added to the underlying original charges in the case. Usually this comes in the form of a Vehicle Code 40508a charge, or a charge under penal code 853.7. In either case, I often try to get those charges dismissed as part of a larger plea agreement. Frequently it works, sometimes it does not. Sometimes the facts are bad.
Whatever the situation, there is more work to do after the warrant is recalled. The underlying case must be resolved after a warrant is recalled. Sometimes it is a trial that is needed to end a case, sometimes it is plea negotiations with the prosecutor.
Questions about a warrant case? Leave a reply below.