Sometimes you may not be able to honor their court dates as required by the law or judge, and this is usually considered a criminal offense. This offense is known as failure to appear, and a person convicted of this offense may end up paying more in fines and fees, or they could face a bench warrant. This offense could be punished as either a misdemeanor or felony depending on the specific instances of the crime. If you are in the city of Fairfax or other cities in Northern Virginia, you can contact Virginia Criminal Attorney to help you understand every aspect of this crime and even represent you if you are charged in court.

Legal Definition of Failure to Appear

When you are arrested and charged with an offense, the police may decide to let you go on the condition that you will appear in court on the set date. When you fail to honor this condition, and don’t appear before the judge, the judge may issue out a type of warrant of arrest called the failure to Appear (FTA) Bench Warrant.

An FTA bench warrant can be issued out on the following persons:

  • Defendants
  • Witnesses
  • Jurors

The warrant is an order by a judge authorizing the police to find and arrest the individual who has failed to show up in court. With that order, the police may stop you anywhere, and at anytime. After the arrest, you could end up in jail until that time when you are able to appear before a judge. Once this happens, you may be released based on your own recognizance or you may be required to post bail.

Failure to Appear before a court is a criminal offense, and so, the judge will set a date for the hearing of your failure to appear case. Depending on your state and the nature of your original crime, your case may be a misdemeanor or a felony. Additionally, you could face contempt of court charges, and this may increase your penalties and/or earn you a jail term or additional fines.

Contempt of Court Charges

Contempt of court means an action or lack of it, which may obstruct or interfere with the order of a justice or one that weakens the dignity of the court or the respect for the court's authority. There is direct contempt of court, which occurs when one openly and in the presence of the court, disrespects its jurisdiction. There is constructive contempt, which happens outside the court. The latter includes one’s failure to comply with the court’s orders including FTA.

Under constructive contempt, there is civil contempt and criminal contempt. Civil contempt results from one's failure to act in accordance with a court order issued for another person's benefit. The penalty for this is usually remedial, for instance, fines or imprisonment for some time until you agree to honor your legal responsibility. 

Criminal contempt, on the other hand, happens when a person attempts to obstruct justice or does something to attack the integrity of a court. The punishment for such is usually punitive.

To be charged with contempt of court, the judge must prove that the order to appear before it was issued, the mandate was apparent and specific, and that the accused/witness knew of that order. Once that is proven, the judge will proceed to establish whether the accused failed under this category on purpose or voluntarily or by mistake or accident.

In Virginia, the punishment for contempt of court attracts a penalty of up to six months and/or a maximum fine of up to $500 under Virginia criminal codes 19.2-11, 18.2-456 and 18.2-457.

Instances of Failure to Appear

There are several instances of FTA:

  1. If a person who has been released under section 19.2-319 of the Virginia laws fails to appear before the court as required, he/she may end up losing any security or privileges that they might have been given. The same applies to a person who has been summoned by the court under VA codes 19.2-73 or 19.2-74. This may not happen if one of the interested parties provides a valid reason why the accused did not appear before the court as instructed or it is established that the interest of justice or the influence of the court will be affected if the accused lost the security/privilege.
  2. A person who has been accused of a felony offense or has been sentenced of a felony offense but the execution of their sentence was suspended according to section 19.2-319 of Virginia laws, and then they willingly fails to appear before the court as instructed, will be guilty of a Class Six felony.
  3. A person who has been indicted with a misdemeanor crime or is sentenced to a misdemeanor offense and his/her execution was suspended according to section 19.2-319 of the Virginia laws, but then they willfully fail to honor a court date as required, will be guilty of a Class One misdemeanor.
  4. A person will also be charged with FTA if he/she was released on their own recognizance or if they were allowed bail, then they willingly fail to appear before a court as required with no valid reason.
  5. If any person was jailed and released on bail or own recognizance to appear before a court as a material witness, then fails to appear when and where they are required to, they can be charged with a misdemeanor crime. These could lead to a fine of up to $1000 or confined in a county jail for not more than a year.

Valid Reasons for Failure to Appear

A notice requiring you to go to court on a set date is usually a demand and not an invitation, which is why you should not ignore it. The only way to avoid an FTA charge is if you can prove to a judge that your refusal to appear before a judge was not intentional and that it was unavoidable. There are certain circumstances where the court may excuse one’s failure to appear and even agree to set another hearing date:

  1. Lack of notice

You should be able to prove that you did not receive the notification for the court date.

In most cases, the judge gives the notice to the defendant or their attorney. For a person who doesn't have an attorney to represent them, the court will mail the notice to their address. Note that if you do not give the address, or you give an invalid address, you will not be excused for FTA. If, however, your opponent failed to provide you with a copy of the notice, the court may be sympathetic. If, again, the notice to appear was sent to the wrong address, the judge may be considerate. The same will apply if you moved out of your original residence before the notice was mailed to you.

  1. Not Aware

Sometimes people may not be aware that they were supposed to appear in court in the first place. If, for instance, you finished all the conditions of your probation and you did not know that you were to appear in court after that, the judge may hear you out and drop your FTA charges. You may also miss a court date if you were not aware that charges had been filed against you or they were dismissed.

  1. An emergency

There are circumstances beyond one’s control which could prevent one from honoring a court date. A sickness, for instance, such as a heart attack or a sick child may be accepted as a valid excuse for FTA. An accident at work or even a kidnapping may also convince the judge that you had a valid reason of failing to appear. However, some emergencies may allow you time to call the court to explain your situation. If not, you may need a document to prove to the court that a crisis that happened at the last moment prevented you from making the court appearance.

Consequences for Failing to Appear

Several things could happen to you once you fail to appear:

  1. The bench warrant: The judge will be compelled to issue out a warrant for your arrest. The order means you could be taken into custody any time after the warrant issuance and a routine traffic stop could result in your arrest if the police run your information through their system. If your previous case was severe, the judge could even order the police to go to your home or place of work to execute the warrant. Once in custody, you will stay locked up until the case is heard and determined;
  2. You might be required to post bail if you were previously released without bail. If you were released on bail, the judge could increase your bond amount, or you could be denied bail altogether;
  3. You may be jailed for some time and/or fined before your case is heard and determined;
  4. You may face additional charges for failure to appear in court;
  5. You may get your driver license suspended until your matter has been resolved. This will cost you more since you will be charged to reinstate your license.

Sentences and Fines for FTA

Virginia Law under section 19.2-128 requires anyone to appear before a court if they have been summoned or a warrant of arrest has been issued against them, unless if there is a document that waives that requirement. Depending on the seriousness of the original charge, you may be charged with either a felony or a misdemeanor. If you had paid any bond, it would be forfeited once you fail to appear. You will also be rearrested.

If you are facing a criminal charge of a felony nature and you fail to appear in court on the judge's set date, you will be arrested, and the judge will order you to stay locked up until your case hearing date.

In addition to that, you will face an additional charge, a Class 6 felony charge. This carries a penalty of up to five years of prison term and a fine that can amount to $2500. The nature of the penalty will depend on the circumstances around the FTA.

If, on the other hand, the underlying charge was a misdemeanor, you will face a Misdemeanor FTA for the court date that you missed. This penalty is not as severe as for the above felony charge. Depending on the conditions surrounding your failure to appear, a judge may dismiss the charge altogether. In some instances, you may be fined an amount not more than $1000 and/or you could face a one-year jail term.

Other than the above penalties, it is important to note that the bench warrant and other FTA charges will show up on your background check. That's why it is essential to do your best to have the order of your arrest lifted, with the help of your attorney.

How Best to Handle Your FTA

If you miss a court date, the wisest thing to do is to get in contact with a lawyer before you get arrested. A qualified Virginia Criminal Attorney will, first of all, find out if a warrant of arrest has already been issued against you. If it has, he/she will do their best to file a petition for the withdrawal of that warrant. The attorney will go ahead and assure the court that you already has a lawyer and that you will appear in court for the next hearing to face your charges.

The judge will not just withdraw the warrant of arrest. However, with an attorney by your side, things may not be as tough as they could be if you were acting on your own. Your attorney may, in the place of a warrant, get a personal recognizance, which you must sign as a promise to appear before the court on the next set date. With that, your FTA charge will be dismissed.

Sometimes the judge may decide to try you in your absence. If this happened and you were found guilty of the original charges in your absence, and no issue of the warrant was issued, your attorney may file a motion requiring the judge to open the case once more and set another trial date. The judge may or may not accept the motion to reopen your case, depending on the conditions around your FTA. If the judge refuses to open the case and you are within the appeal period, your attorney may file an appeal motion for your trial. That is why you need to get in touch with an attorney immediately you miss a court date.

Other than the additional charges, there are other equally important reasons why you need to address the FTA charge right after you have missed a court date. Think about the humiliation of being arrested in the streets, at a traffic stop, at home, or in your place of work.

How An Attorney Will Handle My FTA Case

The first thing the court will do after your arrest is to prove that you had proper notice to appear before the court, but you willfully failed to show up. There are different procedures used in notifying the accused about the dates they should appear in court. If by mail, the court will apply the mailing address in the court records or one that has been provided by your attorney. If a lawyer does not represent you, the court will consider the mailing address you gave. If by any chance, your address changed but you did not notify the court of those changes, this will not be allowed as an excuse for your failure to appear.

The court will also consider the circumstances that kept you from appearing in court as required, and if they were beyond your control. The acceptable ones are, for instance, an accident, an ailment or natural disasters.

Your attorney, through their vast legal knowledge, will establish whether the FTA should have been issued in the first place, or not, depending on the conditions around your case. He/she will also work with the court system to help clear up the FTA and any other associated charge as well as advice you. They will negotiate for favorable penalties if you are found guilty of FTA and other related charges. Lastly, your attorney will represent you in the court hearing before the judge to address the issue of Failure to Appear.

Find a Criminal Defense Attorney Near Me

There are many explanations why a person may fail to appear before a court when required to. Some reasons are acceptable before a judge and others are not. Working with a well-skilled and experienced attorney will help you know what your options are and what to do when you are facing an FTA charge. A Virginia Criminal Attorney who understands the court systems better will be able to offer valid and helpful advice and support throughout your case until your FTA charges are dropped or dealt with. Call us at 703-718-5533 if you are in Fairfax, VA or the greater Northern Virginia for immediate help and support on your failure to appear case.