FAILURE TO APPEAR
Failure to appear is one of the charges that may arise when you don’t appear for a court date. It is illegal to miss any type of required court proceeding. This includes criminal hearings, civil trials, jury duty, and even testifying as a witness when subpoenaed.
NRS 199.335 states:
- If a person:
- Is admitted to bail, whether provided by deposit or surety, or released without bail;
- Is not recommitted to custody; and
- Fails to appear at the time and place required by the order admitting him or her to bail or releasing him or her without bail, or any modification thereof,
the person is guilty of failing to appear and shall be punished pursuant to the provisions of this section, unless the person surrenders himself or herself not later than 30 days after the date on which the person was required to appear.
- If a person who fails to appear in violation of subsection 1 was admitted to bail or released without bail incident to prosecution for:
- One or more felonies, the person is guilty of a category D felony and shall be punished as provided in NRS 193.130.
- One or more gross misdemeanors but no felonies, the person is guilty of:
- A gross misdemeanor; or
- If the person left this State with the intent to avoid prosecution, a category D felony and shall be punished as provided in NRS 193.130.
- One or more misdemeanors but no felonies or gross misdemeanors, the person is guilty of:
- A misdemeanor; or
- If the person left this State with the intent to avoid prosecution, a category D felony and shall be punished as provided in NRS 193.130.
What does all of that mean?
NRS 199.335 is a wordy statute for a simple concept: If you are expected to show up in court and don’t, then you are guilty of a crime.
Please Note: While Failure to Appear is generally only charged against defendants in criminal cases, it can be applied to you for missing an appearance to testify if you have been subpoenaed to do so.
Is that all the statute says?
Obviously, there is more to the statute than just that one concept. Failing to appear for a court date does not always automatically mean that you will be charged with “failure to appear.”
Generally speaking, if you do not show up for a court date, then the judge will issue a bench warrant. If there is a bench warrant issued in your name and you are stopped or detained by a law enforcement officer, you can be taken into custody on the basis of that bench warrant. Bench Warrants can be easily quashed (or thrown out), and are intended to convince you to show up for future court dates. You can read more about Bench Warrants, and other types of warrants here.
You may also be charged with Contempt of Court for missing your court appearance. Contempt of Court is a more serious charge than a bench warrant and is based on conduct that is construed as disrespecting the Court. Contempt of Court is actually a separate charge from whatever underlying charge necessitated the court date that you missed. It is consequently Usually, you won’t be charged with Contempt of Court until you have missed more than one court date. You can read more about the charge of Contempt of Court here.
Failure to Appear is basically the next step in the process. If the court has already tried issuing bench warrants and charging you with contempt of court and you are still not showing up for court dates, then the court is going to take the next step by charging you with “failure to appear.”
Please Note: If the Court has issued a bench warrant in your name, then you cannot be charged with failure to appear until at least 30 days have passed without you surrendering or having an attorney attend to the bench warrant. However, once 30 days has passed, any defendant who has failed to appear can be charged with failure to appear.
What does it mean to “surrender”?
As noted above, when you fail to appear for a court date and the judge issues a bench warrant, you have the opportunity to “surrender”, or turn yourself in, to the police. Generally, when you surrender, the police will detain you until the case can be heard by a Judge. Sometimes, this may take several days, if not longer.
However, an attorney can usually get the bench warrant quashed, or thrown out, and you can avoid the penalties. Usually the Judge will agree to quash the warrant without your presence. However, the Judge may require your appearance at the hearing to quash your bench warrant. Typically, this occurs when:
- The underlying charge was for a felony;
- You have missed multiple court appearances;
- You have an extensive criminal history;
- The missed court date was for something like a trial or sentencing, where it is very important that you be there;
- The bench warrant was issued weeks earlier – Judges tend to be less likely to work with you if you are not timely in dealing with the warrant.
You can read more about Bench warrants here.
So what penalties will I be facing?
The penalties for failure to appear are based on the seriousness of the underlying charge that you failed to appear for, whether it was for a felony, gross misdemeanor, or misdemeanor.
- Felony – If you are charged with failure to appear for a felony court date, then you will be facing the maximum penalties for failure to appear:
- Between 1 and 4 years in a Nevada State Prison; and
- The possibility of up to $5,000.00 in fines.
- Gross Misdemeanor – If you are charged for failure to appear for Gross Misdemeanor charges, then you will be facing:
- Up to 364 days in jail; and/or
- Up to $2,000.00 in fines
- Misdemeanor – If you are charged with failure to appear for Misdemeanor charges, then you will be facing:
- Up to 6 months in jail; and/or
- Up to $1,000.00 in fines.
Please Note: If you fled the state in an attempt to avoid prosecution, then you will be facing the maximum penalties (the same penalties as failure to appear for felony charges), regardless of the underlying charge. The Judge does have the discretion to impose probation instead of jail-time, but is under no specific duty to do so.
Is there any way to defend against the charge?
Of course, there are always defenses to any criminal charge. The specific defenses that apply to your situation will depend on the specific facts of your case. Failure to appear charges are especially dependent on the particular facts of your case. Some of the most common defenses include:
- Extenuating circumstances – This is by far the most common defense to a charge of failure to appear. It is essentially the defense that you did not intentionally fail to appear, but that you were detained by forces outside your control and were unable to appear in court. Generally, the court will only accept one of three reasons as extenuating circumstances:
- Hospitalization – It is important to remember that you can only be charged with failure to appear if 30 days after a judge issued a bench warrant in your name. As a result, hospitalization for a minor illness or injury is not enough to constitute a defense to a failure to appear charge. Your hospitalization will generally have to have been due to an illness or injury so severe that no reasonable person would be expected to appear in court or to find an attorney to appear for them.
- Severe Illness – In much the same way as a hospitalization defense requires a serious condition, defending your failure to appear charge by claiming an illness will require that your illness was so severe that no reasonable person would be expected to show up in court or get an attorney to appear for them.
- Death of a Loved One – If someone very close to you passes away, the Courts will generally stay, or pause, their proceedings to allow you time to attend to necessary matters.
- Defenses to fleeing to avoid prosecution – If you have been charged with failure to appear based on fleeing the state to avoid prosecution, there are two possible defenses that may be available to you:
- No Intent to Avoid Prosecution – As noted above, this charge is based on the presumption that you left the state of Nevada in order to avoid prosecution. However, it may be the case that you left the State without knowing about the pending charges against you, or that you knew of the charges, but were leaving for another pressing reason (perhaps because of the impending death of a loved one), then you may be able to get the failure to appear charges dropped or dismissed.
- No Fleeing – On top of proving that you were intending to avoid prosecution, the prosecutor must prove that you actually left the state of Nevada. If you can create doubt in the prosecutor’s claim that you left the State, then you may be able to defend the charges against you. This won’t clear you of the charges for failure to appear, but should at least eliminate the charges relating to fleeing to avoid prosecution.
Please Note: None of the above defenses are absolute. The Judge and the Prosecutor still have the discretion to continue the prosecution of the charges for failure to appear.
What should I do if I’ve been charged with Failure to Appear?
As with any crime, you should speak with an experienced attorney as soon as possible. As noted above, if you hire an attorney so that you can quickly deal with the charges, your quick response and willingness to bring in an attorney to help you will give the Court, and the Prosecutor, reason to be lenient on you. An attorney can often get Failure to Appear charges dismissed quickly and easily if the charges are recent. However, the longer that the charges are lingering, the less likely the Judge will be lenient with you.
