How to Handle a Bench Warrant or Failure to Appear in New Mexico

Courts in New Mexico can issue a bench warrant and charge a criminal defendant with failure to appear, but only if the failure to appear was willful. An attorney can help if circumstances beyond your control kept you from appearing for court.

By , Contributing Author

When a defendant is released with or without bail in a criminal case in New Mexico, they'll also get a court date for the next step in the case. Failing to appear for court can result in a bench warrant for arrest, an additional criminal charge for the offense of failure to appear, and forfeiture of a posted bond. The offense of failure to appear applies to trial proceedings, appeals, and probation revocation proceedings.

A bench warrant literally directs the police to arrest you and bring you 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 Misdemeanor or Felony Cases

If you are released after posting a bond or on your own recognizance (your promise to appear) in a criminal case in New Mexico, you must appear for all court dates such as arraignment, hearings, trial, sentencing, and probation revocation proceedings. If you do not appear for a court date, the judge can issue a bench warrant for your arrest and the state can charge you with failure to appear.

If a defendant willfully fails to appear in a case involving felony charges, the offense of failure to appear is a fourth degree felony punishable by up to 18 months in prison or a fine up to $5000, or both.

If a defendant willfully fails to appear in a case involving misdemeanor or petty misdemeanor charges, the offense of failure to appear is a petty misdemeanor punishable by up to six months in jail or a fine up to $500, or both.

Defenses to Failure to Appear

If a defendant is charged with failure to appear, the prosecutor must present evidence that the defendant willfully failed to appear. If the prosecutor presents evidence that the defendant failed to appear but the defendant can present evidence that the failure to appear was unintentional or unavoidable and due to circumstances beyond the defendant's control, the defendant should not be found guilty of this crime.

A reasonable defense for failure to appear could include a motor vehicle accident, hospitalization, illness, a death in the family, the defendant's car breaking down on the way to court, being in jail in another location, or the court failing to give notice or accurate notice of the court date. The statute is not intended to punish people for circumstances that prevented them from appearing in court.

Failure to Appear on a Summons Regarding Failure to Pay Fines or Perform Community Service

If a magistrate court or municipal court orders a person to pay fines or perform community service in a minor criminal or traffic case and the person fails to comply, the court can issue a summons directing the person to pay the fines, perform the community service, or appear before the court. If the person fails to do any of these things, the court can issue a bench warrant for the person's arrest. Once the person is arrested, he will have to appear before the judge and address the failure to appear on the summons and make arrangements for payment of the fines or performance of the community service.

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 a minor traffic violation.

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

If you are not able to offer a good or understandable reason for your failure to appear, 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 New Mexico 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, possibly arrange for you to appear in front of the judge rather than be taken into custody, and assist you in preparing a defense or addressing sentencing if you are formally charged with failure to appear.

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