State law provides the framework for what tools and discretion courts have to respond to a defendant’s failure to appear for a scheduled court hearing. The primary condition of all types of pretrial release agreements, or bonds, is appearance in court. In addition to requiring appearance as part of a bond agreement, state law also requires appearance in court, with more than half of the states expressly listing appearance as a condition of pretrial release. Citations or summonses can also be used to require a defendant’s appearance in court. Virtually every state authorizes the use of citations for misdemeanors and traffic offenses, while a handful of states provide broad general authorization or authorize use for misdemeanors and some felonies.
Nonappearance for scheduled court dates while a defendant is on pretrial release can result in revocation or modification of bond, issuance of a warrant, arrest, detention, forfeiture of money bail, suspension of the right to drive or new criminal charges.
Failure to pay or respond by appearance to a criminal citation or summons can also result in court actions including default judgment being entered, required appearance in court or suspension of the right to drive. Failure to appear at a hearing that is set following failure to pay a citation or summons in the time prescribed by the citation, can also result in issuance of a warrant, detention or other sanctions.
NCSL has developed a 50-state database of laws that authorize responses for failure to appear in court in criminal and traffic cases, which can sometimes include civil traffic citations.
This includes the possible outcomes described above that have long been used by courts, but also more recently authorized responses to failure to appear. More recently enacted responses tend to be less punitive and focus more on supportive measures to promote appearance.
As described above, forfeiture of financial bond amounts is often an outcome of failure to appear. However, those provisions are not included in the database or summary below. Forfeiture laws in every state authorize courts to forfeit bonds personally posted by defendants, but the bulk of state law addresses procedures and penalties impacting bail bond companies, not defendants.
The following is a summary of other statutory responses for failure to appear. Statutory text can be located in the database.
The District of Columbia and all states except for Mississippi statutorily authorize additional criminal charges specific to nonappearance after pretrial release or issuance of a citation.
“Bail jumping” or “criminal failure to appear”, as these laws are known, is a separate charge that can be filed in addition to the initial underlying charge or charges. In the majority of states nonappearance must be knowing, willful or intentional. A small minority of states have strict liability for nonappearance.
The penalties for the criminal offense of nonappearance are often tied to the offense level of the underlying charges. For example, if a person is found guilty of bail jumping on a felony charge, the penalty will often be a lesser felony. The same applies to misdemeanor bail jumping. This tiered approach exists in at least 25 states.
At least seven states—Minnesota, Nebraska, Nevada, New York, Oklahoma, Rhode Island and Washington—have statutory grace periods before criminal nonappearance charges can be filed. The Nevada law, for instance, provides defendants with a 30-day grace period to surrender themselves following the date they were scheduled to appear. Statutory grace periods range from 48 hours up to 30 days.
Statutory codification of criminal penalties does not prevent a court from exercising contempt powers to address failure to appear. In 10 states—Delaware, Florida, Illinois, Iowa, Maryland, Missouri, Montana, New Jersey, Oklahoma and Wyoming—criminal nonappearance statutes contain language specifying that those laws will not be construed to interfere with or prevent the exercise of a court’s power to punish for contempt.
Criminal contempt laws in the District of Columbia, Delaware, Hawaii and Vermont specifically enumerate failure to appear as a circumstance that authorizes commencement of contempt proceedings.
Criminal penalties for failure to appear in response to a summons or citation exist in at least 15 states and the District of Columbia. The severity of these charges, like the penalties discussed previously, generally reflect the level of offense for which the original summons or citation was issued.
Contempt is also a response authorized by state law for failure to appear on a summons or citation. For example, Florida classifies failure to appear on summons without good cause as criminal contempt of court. Alternately, Oregon authorizes courts to issue an order requiring the defendant to appear and show cause why they should not be held in contempt of court.
Arrest, Warrants and Orders to Appear
Statutes in at least 29 states and the District of Columbia specifically authorize courts to issue a warrant for a defendant’s arrest after their failure to appear, as required by a bond, citation or summons.
In states without specific authorization for this response, warrants are often referenced in other relevant statutes like those creating criminal penalties or prescribing the contents of citations.
Laws in the database are nearly evenly split in the number that require courts to issue a warrant or other order versus those that allow courts to have permissive authority to issue warrants.
Idaho’s law is an example of a prescriptive provision, stating that courts “shall immediately: (a) enter the defendant’s failure to appear in the minutes; (b) order forfeiture of the bail; and (c) issue a bench warrant for the arrest of the defendant.” Wisconsin’s law on the other hand states that a “court may issue a bench warrant for the defendant’s […] arrest” when they fail to appear as required or when they violate a term of their bond.
Some states have both permissive and prescriptive statutory guidance for courts based on offense class or if the defendant failed to appear on bond or in response to a citation or summons. Delaware, for instance, requires the issuance of a warrant when a defendant fails to appear on a bail bond but allows courts to exercise permissive discretion in misdemeanor cases where a summons was used by law enforcement.
A handful of states allow courts to set new conditions of bond in the bench warrants they issue. Maryland, for example, allows courts to set a bond when issuing a bench warrant. If the defendant posts the bond the court is required to mark the warrant satisfied and reschedule the hearing or trial.
Grace Periods and Other Responses
A few states have also codified grace periods or other measures that provide defendants who have failed to appear with time to address the situation before a warrant is issued.
Connecticut law restricts courts from issuing warrants for failure to appear until 4 p.m. on the day of the scheduled appearance unless there is good cause to issue the warrant sooner. Georgia also restricts the issuance of warrants to the end of the day. The law further requires that defendants who have failed to appear on a uniform traffic citation be mailed a notice of failure to appear. The notice makes defendants aware they have 30 days to resolve the issue prior to a bench warrant being issued.
Idaho law allows courts to set aside forfeiture orders, quash warrants and reinstate bail if the defendant appears in court and satisfactorily explains the failure to appear. Colorado prohibits the issuance of a warrant for traffic infractions all together.
Uniquely, Michigan has codified a rebuttable presumption for certain first-time failure to appear defendants in favor of waiting 48 hours before courts can issue a bench warrant to allow the defendant time to voluntarily appear.
License and Related Traffic Penalties
At least 40 states authorize suspension of a defendant’s driving privilege for failing to appear in court or respond to a citation.
Suspension of a driver’s license is most commonly authorized by state law when a defendant fails to appear in response to a traffic citation or offense. At least 33 states specifically authorize suspension for failure to appear or respond to traffic and motor vehicle charges.
In a handful of states, failure to appear or respond can also result in suspension of the ability to renew a driver’s license or vehicle registration. Like driver’s license suspensions, these consequences can be automatic or imposed by judges or other designated officials.
At least seven states—Arizona, Arkansas, Kentucky, Louisiana, New Mexico, North Dakota and Pennsylvania—authorize suspension of a person’s license in response to failure to appear after release on bond rather than restricting it to just traffic related offenses and citations. States have also authorized vehicle immobilization, liens and mandatory delinquency or reinstatement fees.
Another common response is authorizing courts to enter default judgment against the defendant in their absence and assess fines for a citation. In many states, failure to pay these judgments can also result in suspension of an individual’s license.