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 , Attorney (New Mexico School of Law)
Updated March 24, 2023

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 any court date can result in a bench warrant for arrest, an additional criminal charge for the offense of failure to appear, and forfeiture (loss) of a posted bond. The offense of failure to appear applies to trial proceedings, appeals, and probation revocation proceedings.

What Is a Bench Warrant for Failure to Appear?

If you're 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 fail to appear, the judge can issue a bench warrant.

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

Charges and Penalties for Failure to Appear in New Mexico

Not only can the judge order you arrested when you don't show up for court, but the prosecutor can charge you with failure to appear. This charge, which can be either a felony or misdemeanor, is separate from the charges in the case the defendant fails to appear on.

Failure to Appear in a Felony Case

If a defendant willfully (on purpose) fails to appear in a case involving felony charges, they can be charged with failure to appear as a fourth degree felony. A felony charge of failure to appear can be punished by up to 18 months in prison or a fine of up to $5000, or both.

Failure to Appear in a Misdemeanor Case

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. It carries a sentence of up to six months in jail or a fine of up to $500, or both.

Other Consequences of Failing to Appear in NM

An arrest warrant for failure to appear allows the police to take you into custody essentially anywhere, at any time: They 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're charged with another crime in the future. The conviction will appear in any background checks for employment or housing.

If you don't have a good 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 the bond is forfeited, the money you posted won't be returned to you when the case is over.

Defenses to Failure to Appear in NM

To convict a defendant for failure to appear, the prosecutor must present evidence that the defendant willfully failed to appear. But if the defendant can present evidence that missing court was unintentional or was unavoidable and due to circumstances beyond their control, they shouldn't be found guilty.

Some common reasons why a defendant might not be guilty of failure to appear could include:

  • a motor vehicle accident
  • hospitalization
  • serious illness
  • death of a close family member
  • 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.

A defense is more likely to succeed if there's evidence (other than just the defendant's word) that circumstances beyond the defendant's control prevented them from appearing. A defendant's explanation for missing court will be more credible if they can provide, for example, medical bills that showed serious illness, documentation of a car accident on court day, and so on.

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

Sometimes, a court orders a person to pay fines or perform community service in a minor criminal or traffic case. If the person fails to comply, the court can issue a summons directing them 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 their arrest.

Once the person is arrested, they'll have to appear before the judge and explain the failure to appear on the summons, and arrange for payment of the fines or performance of the community service.

What to Do If You Miss Your Court Date in New Mexico

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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