California Vehicle Code Section 40508 also known as “Failure to Appear” is defined as a person who willfully refuses to appear in court to answer a written promise to appear or a failure to appear after a deposit of bail to secure the promise to return has been made regardless of the disposition of the original charge.
Minor offenses usually don’t involve arrest but rely on a promise to appear which is implied by issuing a violation summons to a person committing a misdemeanor in lieu of arrest as usually, misdemeanors do not warrant arrest.
If you received a ticket for a traffic violation from a police officer, you were given a summons to appear in court at a future date to speak to the court about the violation. If you fail to appear at this future court date, the court can file an additional charge against you known as failure to appear or Vehicle Code 40508A.
This additional charge by the court may be considered an infraction or a misdemeanor, however, most courts will classify the additional charge as a misdemeanor. Infractions are an offense which carries no jail time while misdemeanors can carry a sentence of jail time of up to 1 year, however, under this code, the maximum sentence is six months in county jail barring other factors involved which may require the lengthier sentence.
Even if you are innocent of the original citation issued to you by a police officer, failure to appear is a separate charge imposed upon you for:
- Not appearing in court
- Not appearing to pay bail
- Not paying bail in installments
- Not paying a fine within the time authorized
- Not complying with any condition of the court
What Kind Of Penalties Am I Facing?
Violation of the Vehicle Code 40508 is a misdemeanor. The penalties for this misdemeanor can include up to six months in a county jail, a fine of $1,000 or both, and if you fail to pay the fines imposed or any installment agreement made with the court, the court can suspend your license for 30 days and order you not to drive. You are guilty of this misdemeanor even if your original violation was only an infraction.
Any person charged with a misdemeanor is entitled to a jury trial. In California, a jury requires 12 people to unanimously vote for either acquittal or conviction. California Criminal Jury Instruction 2240 (CALCRIM 2240) instructs a jury that to prove you have violated VC 40508a (Failure to Appear) the prosecutor in the case must prove:
- That you received a citation for a violation
- That you signed a written promise to appear in court
- That you willfully failed to appear in court
Willfully is applied to the intent of an act that is either done or omitted. It implies a purpose or willingness to commit the act or make an omission of it.
Many times, the court may allow a defendant who is accused of failure to appear, to plead to an infraction. This is not a recommended form of action to take as failure to appear may be considered on employment and rental applications as a mark of bad moral character. It is only recommended if all other available options have been exhausted and no defense exists. Failure to appear convictions also remain on a driving record for 5 years and could be available in public records.
Do I Have A Defense?
Lawyers in Los Angeles often litigate hundreds of failure to appear cases each year, successfully winning dismissal of the charges as well as the dismissal of the original violation. It is wise to speak with an attorney if you are facing a failure to appear charge. In most cases, the court has issued a bench warrant for your arrest.
There are some circumstances where there is a legitimate reason for failing to appear on an original violation summons such as being in the hospital at that time or having been deployed to a combat zone.
There are many other reasons for failing to appear in court to answer a summons and only an attorney can advise you if those reasons are recognized as legitimate within the law. Whichever is the case, having this charge appear in public records can affect you negatively and is also a negative in regards to future employment.