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Bench Warrant and Failure to Appear

The arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorises, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

A bench warrant is issued by a judge, on the court's own motion, when a person under the court's authority fails to do what the court ordered: most often failing to appear for a scheduled hearing, but also failing to pay a fine, complete a programme, comply with a subpoena, or appear for jury duty. Unlike an arrest warrant, it does not rest on probable cause that a new crime was committed; the authority is the court's power to compel attendance and punish contempt. Once issued it is entered in the state and, for serious cases, national warrant databases, and any officer who encounters the person - at a traffic stop, an airport, a routine record check - may arrest and hold them until they are brought before the issuing court. A bench warrant does not expire.

Missing court has consequences beyond the warrant. In most states failure to appear on a criminal case is itself a crime, graded according to the seriousness of the underlying charge, and it can be prosecuted even if the original case is later dismissed. If the defendant was released on bail, the court forfeits the bond, a surety who posted it may pursue the defendant and any co-signer for the full amount, and release on the same terms is unlikely a second time. A driver's licence may be suspended for failing to appear on a traffic matter. The court may also proceed in the defendant's absence in some circumstances, and a defendant who absconds mid-trial can be tried and sentenced without being present.

Clearing a warrant is done by appearing. A person who learns of one may, with a lawyer, file a motion to recall or quash it and ask for a hearing date, or surrender at the courthouse at a time when the judge is sitting so that the appearance, the explanation and a new release decision happen the same day; a self-surrender arranged in advance is treated very differently from an arrest on the roadside at night, and in many courts a good reason - hospitalisation, a notice sent to a wrong address, incarceration elsewhere - persuades the judge to reinstate the prior release. Ignoring a warrant in the hope it will lapse is the one strategy that never works.

Where this comes from

The authority to issue a bench warrant is inherent in the court and is codified in each state's criminal procedure code and in Federal Rule of Criminal Procedure 9 and 46(f) (forfeiture of bail on a breach of condition); the federal failure-to-appear offence is 18 U.S.C. § 3146, and state equivalents are in each penal code. Trial in absentia after a defendant absconds is governed by Federal Rule of Criminal Procedure 43(c) and Taylor v. United States, 414 U.S. 17 (1973), with Crosby v. United States, 506 U.S. 255 (1993), barring it for a defendant absent at the start of trial. The surety's remedies against a defendant and co-signers are the bail contract and state bail statutes. Grading of the failure-to-appear offence is each state's own.

When people hire a lawyer for this

A lawyer can usually clear a bench warrant faster and more safely than the person can alone - by filing a motion to recall it, arranging a walk-in surrender at a time the judge is available, and presenting the reason for the absence with documents - and can sometimes have the failure-to-appear charge dropped as part of resolving the underlying case. Anyone who has missed a date should call a lawyer or the clerk that day: the difference between a warrant recalled at a scheduled hearing and an arrest on a Friday night with a weekend in custody is entirely a matter of who moves first.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.