How to Handle a Bench Warrant or Failure to Appear in Arizona

If you are facing criminal charges in Arizona and fail to appear for court, you can be charged for a second crime. Don't let that happen -- take steps to protect yourself.

Failure to appear for court in a criminal case in Arizona can result in a misdemeanor or felony charge for the offense of failure to appear. (Ariz. Rev. Stat. §§13-2506, 13-2507.) The offense of failure to appear can be a felony or misdemeanor, depending on whether the criminal charge in the underlying case is a misdemeanor or felony. When a criminal defendant fails to appear for court, the court also can issue a bench warrant for the defendant’s arrest and order forfeiture of any posted bond.

A bench warrant literally directs the police to arrest a person and bring him before the court. When police arrest a person on a bench warrant, the person typically will be taken to jail and held there until the judge is available for a hearing.

Failure to Appear in the First Degree

If a defendant in Arizona knowingly fails to appear for a court date in a case involving a felony charge, the offense of failure to appear is a Class 5 felony. (Ariz. Rev. Stat. §13-2507.) The presumptive sentence for a Class 5 felony in Arizona is 1.5 years in jail and a fine up to $150,000. The court can reduce the jail sentence to any length of at least six months if the court finds mitigating circumstances. (Ariz. Rev. Stat. §13-702.) Mitigating circumstances are circumstances or factors that justify a reduced sentence, such as the young age of the defendant, that the defendant was under unusual or substantial duress, or any information about the defendant’s character or background that the judge considers justifies a lower sentence. (Ariz. Rev. Stat. §13-702(E).)

People charged with failure to appear in the first degree who have prior felony convictions can receive a greater sentence. The possible length of the sentence will depend on the number of prior convictions. (Ariz. Rev. Stat. §13-703.)

Failure to Appear in the Second Degree

The offense of failure to appear in the second degree applies in cases involving misdemeanor and petty offense charges in Arizona. A petty offense is a crime for which the penalty is a fine and no possible imprisonment.

When police arrest a person in Arizona for a misdemeanor or petty offense, the officer can release the person and require him to appear in court on a later date, rather than taking him into custody. The officer prepares a written notice to appear at court and a criminal complaint, and must have the defendant sign a promise to appear. The appearance date must be within five days of the arrest. (Ariz. Rev. Stats. §13-3903.) If the person fails to appear as promised, he can be charged with failure to appear in the second degree, a Class 2 misdemeanor. The maximum sentence for a Class 2 misdemeanor in Arizona is four months in a facility other than prison and a fine up to $750. (Ariz. Rev. Stat. §§13-2506, 13-707, 13-802.)

If a defendant charged with a misdemeanor or petty offense case in Arizona fails to appear for any other court date, the defendant can be charged with the offense of failure to appear in the second degree as a Class 1 misdemeanor. The maximum sentence for a Class 1 misdemeanor in Arizona is six months in a facility other than prison and a fine up to $2,500. (Ariz. Rev. Stat. §§13-2506, 13-707, 13-802.)

If a defendant convicted of a misdemeanor or petty offense in Arizona has one or more prior convictions for the same offense within the previous two years, the sentence will jump to the sentence for the next higher level of offense. This means that a defendant convicted of a Class 2 misdemeanor in 2018, who was convicted of the same offense in 2016 or later, will face the sentence for a Class 1 misdemeanor. If the defendant is convicted of a Class 1 misdemeanor in these circumstances, he will be subject to the sentence for a Class 5 felony.

Defenses to Failure to Appear

The defenses against a failure to appear charge in Arizona are limited, because the basis for the charge is knowingly failing to appear. If a defendant receives proper notice of a court date and fails to appear even because of something unforeseeable and outside of his control, such as a car accident or hospitalization, he still can be convicted of the offense because technically he failed to appear with knowledge of the court date. But a defendant can file a motion to quash (cancel) a bench warrant for failure to appear, explaining the circumstances that prevented him from coming to court. The judge has the power to quash the warrant, which has the effect of dismissing the charge of failure to appear.

If you fail to appear for court and have a good reason (like a car accident or a death in the family), it is very important to contact the court right away and file a motion to quash the warrant as soon as possible. Do not wait to get arrested on the warrant. The judge is less likely to be sympathetic to your situation if you do nothing until the police have to arrest you and bring you before the court.

What to Do If You Fail to Appear or Learn a Warrant for Arrest Has Been Issued

An arrest warrant for failure to appear allows the police to take you into custody essentially anywhere, at any time. The police can come to your home, your work or place of business, or a social event and arrest you. You also can be arrested if a police officer discovers the warrant during a traffic stop for even a minor traffic violation.

A conviction for failure to appear becomes part of your criminal record and can affect your conditions of release and possible sentence if you are charged with another crime in the future. The conviction also will appear in background checks for matters such as employment or housing.

If you fail to appear for court in a criminal case in Arizona while released on bond, the court can forfeit your bond and you can be held in jail until your case is completed. If you posted a bond, the court will keep the bond and the money will not be returned to you.

If you miss a court date or learn that a court in Arizona has issued a bench warrant for failure to appear, you should contact an attorney immediately for legal advice. An experienced criminal defense attorney can contact the court on your behalf, file a motion to quash the warrant, and assist you in preparing a defense or addressing sentencing if you are formally charged with the offense of failure to appear.

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