Motion to recall a warrant – How do you do it?

If you have an outstanding bench warrant for your arrest, you may file a motion with the court to recall (“quash”) the warrant. The court will then hold a hearing where your defense attorney and the prosecution can argue their positions. Ultimately, the court has discretion whether to quash the warrant or let it stand.

What is a bench warrant?

A bench warrant gives law enforcement the authority to go out and arrest you (if you are named in the warrant). Trial court judges typically issue bench warrants when you violate court orders, such as failing to appear at a required court date on your case docket. After the issuance of the warrant, you are vulnerable to arrest at any time (particularly during traffic stops after the police run your name).

Bench warrants are different from arrest warrants in five main ways:

1. Arrest warrants mark the beginning of a criminal case. Bench warrants can be issued anytime during the case.
2. Judges may issue arrest warrants only after the police submit an “information” or after a grand jury “indicts” you. Judges may issue bench warrants at their own discretion without law enforcement asking for it.
3. Arrest warrants only name you in a criminal case. Bench warrants can name anyone – such as a witness – that allegedly violates court orders.
4. Arrest warrants concern only the crimes that you are accused of committing. Bench warrants concern only the court orders that you are accused of violating (such as missing court).
5. It is rare for judges to recall arrest warrants. Though judges will usually recall bench warrants if you (or your attorney) file a motion to quash the warrant and appear at the court hearing.

But like arrest warrants, bench warrants remain outstanding until the judge recalls them. Otherwise, they never expire. As with arrest warrants, if you are arrested pursuant to a bench warrant, you can be held on a bail bond. 1

How do I quash a bench warrant?

When you learn you have an outstanding bench warrant, you should hire an attorney (if you do not already have one). The attorney can then file a “motion to quash the warrant” with the court on your (petitioner’s) behalf. This motion asks the judge to recall the bench warrant.

Upon receipt of this motion, the judge will schedule a court hearing (typically within a week of the filing). Sometimes the judge will require you to appear in person. Though in most cases, your defense attorney can appear on your behalf. Judges are more likely to require you to be present if:

• the underlying case is for a felony,
• you are a flight risk, and/or
• you have a history of missing court appearances

At the motion hearing, your defense attorney will ask the judge to quash the warrant. Prosecutors typically urge the court to let the warrant stand. Sometimes the judge will want to know the reason that you missed court before making a decision.

If the court quashes the warrant, you are no longer vulnerable to arrest. 2

Defendants in felony cases usually have to appear in person at any bench warrant hearings.

What is the law in California?

California Penal Code 978.5 PC authorizes judges to issue bench warrants when you miss your court dates. Bench warrants can be served in any California county in the same way as arrest warrants. 3

Note that if you miss your court date, you can face additional criminal charges for failure to appear (PC 1320 and 1320.5). Failure to appear (FTA) in a misdemeanor case is also a misdemeanor, carrying:

• up to 6 months in jail, and/or
• up to $1,000 in fines

Failure to appear in a felony case is also a felony, carrying:

• up to 1 year in jail, or
• up to $5,000 in fines, or
• a state prison sentence of 16 months, two years, or three years. 4

A common defense to FTA charges is that you did not willfully miss court. For instance, simply forgetting to go is not willful – it is an accident. Another defense is that you did not mean to avoid the court process. For example, if you got injured and had to go to the ER, you are not guilty of FTA because you were not trying to avoid court.

Note that FTA convictions can be appealed from state superior court to the court of appeals and eventually the supreme court. If unsuccessful, you may even be able to request a rehearing where the judges hear oral arguments en banc. You may be able to convince the appellate judges to grant relief, set aside the court’s mandate and remand the case.

See our related article about bail and bond forfeiture and FTA warrants.

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Disclaimer: Past results do not guarantee future results.

Legal References

1. See also Federal Rules of Civil Procedure no. 4.
2. See, for example, United States. v. Rodriguez (9th. Cir. 1982) 682 F.2d 827.
3. California Penal Code 978.5 PC.
4. PC 1320 and 1320.5; see People v. Forrester (Cal. App. 3d Dist., 1994), 30 Cal. App. 4th 1697, 37 Cal. Rptr. 2d 19.