Understanding Failures to Appear and the Ramifications

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Posted in On March 9, 2014

Failure to Appear — The Consequences Both Criminally and Civilly

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When it comes to any criminal or civil matter before a court, without question, one of the biggest mistakes a defendant or party to a civil matter can do is fail to appear for court. Any failure to appear (or “FTA,” as many refer to it) has consequences that may have significant ramifications on your case moving forward.
A failure to appear is just as it sounds — a defendant or a party to a civil matter fails to appear for a court hearing or required judicial proceeding. The key becomes whether it was knowingly or not. Whether it’s an initial hearing, a pre-trial conference, a summons date, a trial date, a status hearing, or any other hearing whereby you were required through a court order or subpoena to appear, if you fail to appear, the implications could be huge.
This blog will address both the civil and criminal ramifications.
CRIMINAL RAMIFICATIONS:
If a defendant fails to appear for court, a few things will typically happen:

  1. Request for Time: assuming you have an attorney, any good defense attorney will ask the court for time to get ahold of you to find out if the failure to appear was inadvertent. Typically, a judge will hold a warrant under advisement for 12-48 hours to allow an attorney a chance to figure out why you failed to appear.
  2. Warrant: if a judge believes that a defendant was properly given notice of a court hearing and willfully or negligently disregarded a court order, summons, or subpoena, the judge will typically issue a warrant for their arrest.
  3. Bond: In addition to a warrant being issued by the judge, a bond is almost always assessed. The bond amount will always be in addition to a bond amount you have already paid during your original booking (assuming you were arrested as part of the case). The prosecutor may also file a Motion to Revoke Bond as well.
    1. No Bond: depending on a defendant’s history of failing to appear, or if the judge believes that the defendant is a flight risk, the judge can issue a “No Bond Hold.” In other words, once you get in custody, you won’t be released until the case is over or the judge resends the No Bond Hold.
    2. Additional Jail & Fines: assuming you are taken into custody and the judge/prosecutor believes you willfully failed to appear, there can be additional fines and heavier sentences as a result.
    3. Failed & Withdrawn Diversions/Deferrals: typically, if you miss a court date, the prosecutor will either withdraw the diversion you had previously entered or deny you the ability to enter into one in the future.

In addition to the administrative issues above, the prosecutor’s office has the ability to file criminal charges against defendants that miss court.

  • Criminal Defendants who FTA:
    • I.C. 35-44.1-2-9 states that any defendant that “intentionally” fails to appear for court commits a Class-A Misdemeanor. However, if the case involves a defendant originally charged with a felony, the prosecutor’s office can file a Level 6 Felony as a result of a failure to appear as well.

CIVIL RAMIFICATIONS:
Obviously, civil ramifications are less severe than criminal consequences; however, their impact can be lasting and obtrusive. For example, if you’ve been issued a complaint or a summons for a traffic infraction or ordinance violation, according to I.C. 35-44.1-2-10, you can be charged with a Class-C Misdemeanor (though this is rarely charged).
However, and perhaps most importantly in civil matters, if you fail to appear for court, the issuing court can enter what’s called a “Default Judgment” against you. A default judgment can be incredibly detrimental, depending on the circumstances.

  • Traffic Matters: In a traffic related case, a default judgment can result in: (1) an automatic guilty entered against you to ALL counts, (2) heavy fines, and (3) a license suspension with an indefinite suspension!
  • Civil Matters/Small Claims: if the court believes you willfully, or negligently, ignored a court hearing, the court can issue a ruling in favor of the moving/opposing party to your suit. Therefore, in civil/family matters, custody issues, visitation, child support, etc., can be established without you being present. In small claims, a monetary judgment can be entered against you as well, regardless of whether you had a defense to the claim or not.

CONCLUSION:
Clearly, any failure to appear can have enormous negative effects on your life. Whether its heavy fines or additional jail time, it’s incredibly important that you never miss a hearing date or willfully ignore a court order, subpoena, or summons to appear.
If you find yourself in a situation where you have failed to appear for court (whether willfully or ignorantly), give the experienced attorneys at Banks & Brower, LLC, a call today. We can file the appropriate paperwork and contact the relevant parties in an attempt to alleviate the impact your FTA can have on your case going forward. Typically bond can be negotiated with the prosecutor up front and your surrender can be much easier. Or, in a civil case, we can file a Motion to Vacate to erase the default judgment as well.
Give us a call today to discuss your case. We are open 24/7/365. You can reach us at 317.870.0019, extension 304, or email us at info@banksbrower.com.