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.|
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.
In the last few years, many courts have been moving away from issuing warrants on missed traffic court dates, but there is no consistency. Some courts always issue warrants. Some courts never issue warrants for traffic infractions. Some courts issue bench warrants, but never send them to the sheriff’s office.
The one thing all courts do do – yes, Dodo, is use the 40508a misdemeanor charge a s a basis for their threats that you are going to jail. But what the court clerks behind bullet proof glass will not tell you is that they can actually ignore the law itself and treat a VC 40508a violation as an infraction, and thereby limit your right to challenge it and threaten you with jail at the same time. Great trick, hun?
I once had a Judge explain to me how and why this happens. He said:
“I can issue a warrant, they dont come in for years, and when they do, it costs us a lot of money. I can suspend their drivers license, they come in within a few months, and it costs them a lot of money.”
Doesn’t make sense? Dont worry about it. Keep on trucking.
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 the statute that applies for an FTA on some non traffic violations, such as domestic battery, petty theft (such as Penal Code section 488) or assault.
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