Updated: Dec 15, 2020
The first thing a person with a warrant should do is contact a criminal defense lawyer. A criminal defense lawyer will be able to determine why the person has a warrant and how he or she should best defend against the criminal allegations that support the warrant.
Bench Warrant v. Arrest Warrant
There are two types of criminal warrants in California: A bench warrant and an arrest warrant. A bench warrant is issued by a judge and grants authorization to law enforcement to seize (arrest) a person. A bench warrant is issued when a person has either failed to appear for court as promised, or failed to complete a term of probation. An arrest warrant is issued by judge and grants authorization to law enforcement to arrest a person. An arrest warrant is issued when a person is suspected of committed a criminal offense…usually a felony offense.
Warrant Not Required to Arrest
A peace officer does not always need a warrant in order to arrest a criminal suspect. For example, a peace officer may arrest a person when the peace officer has reasonable cause to believe that the person arrested has committed a public offense and that public offense was committed in the peace officer’s presence. When the public offense that occurs in the peace officer’s presence amounts to a misdemeanor, the peace officer will usually issue the suspected offender a notice to appear in court, as opposed to placing the person under arrest. When the public offense that occurs in the peace officer’s presence amounts to a felony, the peace officer will arrest the suspected offender.
Note: There are exceptions to the notice to appear option when the misdemeanor that occurs in the peace officer’s presence involves DUI, violation of a restraining order, domestic violence, contempt of court, a firearm offense, resisting an officer, when the officer reasonably believes the person will not appear in court as promised, and more.
Offenses Not Observed by a Peace Officer
Usually, an officer may not arrest a suspect for a criminal offense that occurs outside the presence of an officer unless the officer first obtains a warrant from a judge. The warrant must be supported by the officer’s probable cause (reasonable belief) to believe the suspect has committed a criminal offense. There are many exceptions to this warrant requirement that are beyond the scope of this article.
How to Discover a Warrant’s Issuance
Most people who have a warrant for their arrest, whether the warrant is in the form of a bench warrant or an arrest warrant, already know of the warrant’s existence. The defendant can easily find out whether a bench warrant has issued against him or her by visiting the court’s website and docket calendar and performing some simple name searches. Bench warrants issue when a defendant misses a court date, fails to appear for jury duty, fails to obey some term of her probation, etc. Arrest warrants may be discovered in the same manner; however, some arrest warrants are in the form of a Ramey Warrant and cannot be easily discovered. A Ramey Warrant is a type of warrant that is issued before criminal charges are filed. The Ramey Warrant request is submitted directly by law enforcement to a judge and usually in emergency situations where the district attorney’s review of the need for the arrest warrant would curtail the arrest itself (i.e. defendant about to flee, etc.). Another reason for a Ramey Warrant, as opposed to a regular district attorney requested arrest warrant, is to avoid advance notice of the warrant to the criminal suspect through the court’s public website. Therefore, a Ramey Warrant against a suspect, if there is one, cannot be as easily discovered. The best way to find out whether a person has a warrant against her is to contact a criminal defense attorney for assistance.
Warrant Issuance Procedure
An arrest warrant may be issued by a judge after the judge has been presented with sufficient evidence, either from the district attorney, or from law enforcement, that demonstrates to the judge that the subject of the warrant committed a public offense. The evidence presented to the judge in support of an arrest warrant is made through an affidavit or declaration, which is signed under penalty of perjury. The affidavit in support of the arrest warrant will describe, with particularity, why the district attorney or law enforcement believes the subject of the warrant has committed a public offense. The arrest warrant is valid only for the time stated in the warrant and must be executed without unreasonable delay. Any officer may arrest the person subject to the arrest warrant. In fact, failure of a peace officer to arrest a person subject to an arrest warrant is violation of the court’s order and could lead to criminal charges of contempt of court against the peace officer (some exceptions apply in misdemeanor bench warrant cases).
Arrest on Warrant Procedure
An arrest upon an arrest warrant may take place at any time for a felony allegation. For misdemeanor allegations the arrests upon an arrest warrant must be made between 6:00 a.m. and 10:00 p.m. In practice, most misdemeanor arrest warrants are usually, but not always, handled by sending a notice of summons to the suspect’s home. The notice of summons informs the criminal suspect of the time and place to appear to resolve the criminal allegations against her. Peace officers acting upon felony arrest warrants may arrest the subject of the warrant in his or her home, at work, or in any public place; however, if the subject of a felony arrest warrant is located in another person’s home, the arresting peace officer must usually first obtain a search warrant against the subject of the arrest warrant (search warrant exceptions may apply). Also, a peace officer may use reasonable force to enter a suspect’s home, including breaking into the suspect’s home, in order to make an arrest pursuant to an arrest warrant (some limitations to this rule may apply).
A peace officer that arrests a person pursuant to an arrest warrant must bring that person to court without unreasonable delay and no longer than forty-eight hours. There are exceptions to this forty-eight hour rule when the person arrested pursuant to an arrest warrant is arrested in a different county from the county where the arrest warrant issued.
Note: There are thousands of warrants issued against criminal suspects every year in California. Law enforcement personnel does its best to keep up with serving these warrants and making arrests pursuant to the orders listed in the warrants; however, there is a hierarchy of importance: felony warrants should be served before misdemeanor warrants, and misdemeanor warrants should be served before infraction warrants (traffic court warrants). For this reason, a bench warrant on a misdemeanor allegation does not usually call for, or justify, the personal attention of law enforcement officers. This means that peace officers are not usually showing up at a misdemeanant’s home to arrest her. On the other hand, if a bench warrant is active against a person when that person is yielded for an ordinary traffic stop, then that person may be arrested pursuant to that active bench warrant. In addition, the arresting peace officer is not obligated to have the bench warrant or arrest warrant on his person when he makes an arrest pursuant to that warrant; the peace officer has the power to arrest pursuant to the warrant so long as he is aware of the warrant (usually through the California Law Enforcement Telecommunication System, or CLETS).
Timeliness of Serving Warrants
Bench warrants do no expire. Arrest warrants expire on the date stated in the warrant (if any), but there is usually no expiration date listed on arrest warrants because an expiration date in an arrest warrant would promote further attempted evasion by the wanted suspect. The fact that there is no expiration date on most warrants does not justify law enforcements’ unreasonably delay in making an arrest. In fact, unreasonable delay in effectuating an arrest upon a warrant could lead to the court's dismissal of the criminal charges that served as the basis for the warrant in the first place.
For example, if the defendant had a misdemeanor DUI criminal charge filed against in her in March of 2017, and the defendant was issued a bench warrant against her after she failed to appear at court for arraignment on the criminal charge several months later, then the defendant might argue that the district attorney’s initiation of prosecution against her in 2020 for the 2017 DUI should be terminated. The defendant’s argument would be based on the fact that law enforcement failed to bring her to court within a reasonable amount of time after the bench warrant issued in 2017.
Note: The defendant must show that she was prejudiced by the unreasonable delay in execution of a bench warrant or an arrest warrant before a judge will dismiss any criminal allegations against her. In addition, the defendant must show that she did not intentionally avoid capture during law enforcements’ unreasonable delay in execution of a bench warrant or an arrest warrant. In summary, when the defendant can show 1) unreasonable delay in arrest after a bench warrant or arrest warrant is issued against her, 2) prejudice against the defendant caused by the unreasonable delay in arrest (i.e. defendant’s loss of her memory of the event over time which would otherwise be needed to defend against the criminal allegations, lost documents, etc.), and 3) the defendant did not avoid capture (i.e. flee the state, change her identity, move without changing her address, etc.), then the defendant might be entitled to a dismissal of the criminal charges against her under a Serna or Jones motion (Contact our criminal defense attorneys for more information on Serna and Jones motions to dismiss criminal allegations).
Bail & Warrants
A warrant for a person’s arrest will ordinarily list a bail amount in the warrant. A bail amount is how much a person will have to stake with the court, usually through a bail agent, in order to be released from custody after arrest on the warrant and before the defendant’s first court date (arraignment).
For example, an arrest warrant may issue for a person who is suspected of committed the crime of robbery. On the face of the defendant’s arrest warrant there will be an amount listed as a bail amount (usually $100,000 in San Bernardino County for the crimes of robbery). Upon arrest the defendant may post that bail amount and be released from custody while he awaits his first court date. Sometimes, an arrest warrant will list the bail amount as no bail. This happens in cases where the warrant is for a suspect who is either a fugitive from justice (see below), or is otherwise charged with a serious or violent felony, such as murder in the first degree, kidnapping for ransom, aggravated mayhem, torture, etc.
Recalling a Warrant
A warrant may be recalled in several situations. To recall a warrant means to quash the warrant or to remove the warrant. For example, in a misdemeanor prosecution of petty theft, where the defendant missed his court date for arraignment and the judge subsequently issued a bench warrant against the defendant, the judge may nevertheless recall the warrant when the defendant, or his criminal defense attorney, appears at a later date in order for the criminal case to proceed. Another way a warrant is recalled or quashed occurs when the defendant is arrested (as there is no longer a need for the warrant when the defendant is arrested). In cases where the defendant is wanted in more than one jurisdiction there could be several warrants issued. The court does not have the power to recall or quash a warrant that it did not order. For example, if the defendant is wanted on an arrest warrant in Riverside County, and the defendant is arrested in San Bernardino County, then the Riverside County arrest warrant is still active against the defendant even though he is in custody in San Bernardino County. In this situation, San Bernardino County would transfer the jailed suspect to Riverside County within five days in order for the suspect to resolve his Riverside County warrant.
Extradition to California
A person could be extradited (transferred) to California when she is arrested in a place other than where the warrant issued. For example, if San Bernardino County issues an arrest warrant for a person who is located in Las Vegas, Nevada, then Nevada based law enforcement may arrest that person and have him transferred to San Bernardino County for prosecution. Also, under the same circumstance, Nevada law enforcement may allow San Bernardino County law enforcement the ability to make the arrest (as opposed to using Nevada law enforcement personnel). Basically, a warrant in California may be served on a person not residing in California. Whether or not the person arrested pursuant to a California warrant will be transferred to California to face criminal charges depends on the extradition laws between California and the state where the suspect is arrested. Extradition is a complex area of law and many factors must be considered before a determination can be made as whether or not a person will be extradited to California for an arrest on a California warrant (i.e. misdemeanor v. felony warrant, the presence of any interstate or intercountry treaty concerning extradition, the agency that discovers the warrant when contacting the suspect, the available resources of the capturing jurisdiction, etc.).
Note: Leaving or fleeing California to avoid a bench warrant or arrest warrant that was issued in California could lead to harsher penalties against the wanted person. For example, if a criminal suspect is arrested in Arizona pursuant to a California arrest warrant, than that criminal suspect could be denied bail in California after she is extradited from Arizona. This could happen regardless of whether or not the criminal suspect in Arizona had knowledge of the warrant from California. When a person intentionally flees the jurisdiction to avoid capture pursuant to a warrant then that person may be considered a fugitive from justice. A fugitive from justice status carries penalties in addition to those possibly imposed and associated with the underlying crime.
Criminal Defense Attorneys & Warrants
Anyone who discovers that they have a warrant against them should contact a criminal defense lawyer without delay. A criminal defense lawyer will be able to determine the best way to resolve the warrant and the underlying criminal charge that supports the warrant. A criminal defense lawyer might be able to arrange for the warrant to be recalled before the defendant attends court. In fact, with bench warrants in misdemeanor cases, the defendant’s criminal defense attorney can usually have the court recall or quash the warrant without the need for the defendant to attend court (PC 977(c)). Also, the defendant’s criminal defense attorney can ensure that the defendant is not harassed by law enforcements’ effort to obtain a statement from the defendant. Usually, the defendant’s criminal defense attorney can arrange to have the defendant surrender to police without the police attempting to arrest the defendant at her home or work. Finally, a criminal defense attorney can start to make the arguments necessary for the defendant’s best chance to secure an own recognizance release (OR) or reduced bail so that the defendant is not facing her criminal charges while sitting in jail.
Note: A person should not delay in speaking to a criminal defense attorney upon discovery that a warrant has been issued for his or her arrest (bench or arrest warrant). A criminal defense attorney will be able to explore defense options, explain to the defendant her rights, retain necessary defense experts, collect and preserve defense-favorable evidence, ensure no inculpatory statement is elicited from the defendant, and start the process of securing the defendant’s out-of-custody status. In fact, the very fact that a person subject to an arrest warrant walks herself into court with an attorney tends to demonstrate to the court that she is not a flight risk, is not avoiding capture, will comply with conditions of an own-recognizance release, and that she is not guilty of the criminal allegations.
Warning: A person who discovers a warrant has been issued against her could attempt to turn herself into law enforcement or add herself to the court’s calendar in order to resolve the warrant and the underlying criminal allegations; however, without a criminal defense attorney by her side, law enforcement will likely attempt to elicit from her a statement concerning the criminal allegations before booking her into custody and a judge will likely remand (arrest) her in court, even if she attempts to make bail the very same day. A suspect or defendant in a criminal case should not make statements to law enforcement concerning a criminal allegation and that suspect or defendant should avoid trying to resolve a warrant without first speaking to a criminal defense attorney. Criminal defense attorneys are experienced in these areas; they known what to say and do, and perhaps more importantly, what not to say and do, to help a person who is facing criminal charges avoid jail and other penalties. Criminal suspects or defendants who makes mistakes in this process can cost themselves their liberty, their hard-earned money that is needlessly spent on bail, their reputation, their career, and their future; a person should always contact a criminal defense attorney upon learning that there exists a warrant against him or her.
To learn more about warrants, including bench warrants, arrest warrants, and Ramey Warrants, contact our criminal defense lawyers without delay. You will be directed to speak privately with one of our experienced and successful criminal defense lawyers. Our attorneys are available every day of the week to assist you. Call today!