Penal Code 853.8 | Failure to Appear after Written Promise to Appear

Penal Code 853.8 | Failure to Appear after Written Promise to Appear

Getting arrested can be a scary and overwhelming experience. Even if you’re released on your own recognizance with a promise to appear in court, the legal process can feel daunting. One of the most important things to understand is that failing to appear in court after promising to do so can lead to additional criminal charges under California Penal Code 853.8.

This article provides an overview of Penal Code 853.8 and the consequences of violating it. We’ll cover the basics of what it means to fail to appear, penalties you may face, and potential defenses. We’ll also look at steps you can take to avoid violations and work through the court process successfully.

What is Penal Code 853.8?

Section 853.8 of the California Penal Code makes it a misdemeanor to willfully violate a written promise to appear in court. This promise is given when you are released after an arrest instead of being kept in jail pending trial. The written promise is referred to as an “Own Recognizance Release” or “O.R. Release.”

By signing the O.R. Release, you formally promise to appear in court on a specified date and time. If you then fail to show up without a valid legal excuse, you are subject to being charged with a misdemeanor under PC 853.8.

Elements of a PC 853.8 Violation

For you to be convicted under this code section, the prosecution must prove the following elements:

  • You were arrested and released on your written promise to appear;
  • A specific date, time, and place was given for your required court appearance;
  • You willfully failed to appear as promised; and
  • You did not have a lawful excuse for failing to appear.


A key issue is the willfulness of your failure to appear. This means the absence must be intentional rather than just accidental or unintentional. However, intent can be presumed if you had actual notice of the hearing and did not show up or have an adequate excuse.

Lawful Excuse

Valid legal reasons for missing a court date can include:

  • Illness or medical emergency
  • Serious accident or injury
  • Death or serious illness of an immediate family member
  • Disabling car problems like a flat tire or accident
  • Severe weather conditions making travel unsafe
  • Failure to receive notice of the hearing date

If you have a legitimate excuse like these, it is crucial to contact the court immediately and explain your situation. You will need to provide documentation like doctor’s notes whenever possible.

Penalties for Violating PC 853.8

If convicted of failure to appear under this statute, potential penalties include:

  • Up to 6 months in county jail;
  • A fine of up to $1,000;
  • Informal probation up to 3 years;

In addition to fines and jail time, a PC 853.8 conviction will create a misdemeanor criminal record. This can negatively impact your reputation, immigration status, and future employment opportunities.

Getting Legal Help

Dealing with criminal charges is challenging, so don’t go it alone. Having an experienced California criminal defense lawyer represent you can make all the difference.

An attorney can investigate the circumstances of your case and build strategic defenses. For example, they may be able to show you had a valid legal excuse for missing court or cast doubt on whether your absence was truly willful.

In many cases, skilled negotiation by legal counsel can lead to reduced charges or an alternative resolution like community service. Your lawyer may also be able to get the failure to appear charge dismissed altogether.

Avoiding Violations of Penal Code 853.8

The best way to steer clear of a PC 853.8 violation is to carefully follow all instructions when released on an O.R. Release. Be sure to:

  • Fully understand your promise to appear;
  • Note the exact date, time, and location of your court hearing;
  • Calendar or set reminders for your court date;
  • Arrange reliable transportation to get to court;
  • If needed, request a different court date well in advance;
  • Promptly notify the court if an emergency prevents your appearance;
  • Follow up with the court if you miss court for any reason.

Violating a promise to appear can lead to additional criminal charges. But by being prepared and responsible, you can avoid this outcome and successfully complete the court process.

What Happens When You Miss Court After an O.R. Release?

If you fail to appear as promised after being released on an O.R., here’s what typically happens:

  1. The court will note your absence and may issue a bench warrant for your arrest.
  2. Once located, you will be rearrested and brought before the court.
  3. You will be charged with violating Penal Code 853.8.
  4. You may be taken into custody or released again, this time possibly with increased bail.
  5. The court will schedule an arraignment on the failure to appear charge.
  6. You will go through further criminal proceedings for the new misdemeanor offense.

As you can see, even one missed court date can spiral into much more serious consequences. It’s imperative to strictly follow your O.R. Release instructions or promptly communicate with the court if an emergency arises.

Common Defenses Against Penal Code 853.8 Charges

Some of the most common defenses against Penal Code 853.8 charges include:

Lack of Notice

It’s not a crime if you didn’t know about the hearing. If you weren’t properly notified or served with the date and time, you cannot be convicted of willfully missing court.

Lack of Willfulness

As mentioned earlier, the absence must be willful or intentional. Evidence showing your failure to appear was unintentional could defeat the charges.

Adequate Legal Excuse

Having a valid legal excuse like hospitalization for an emergency can negate the willfulness of missing court. Be sure to offer supporting evidence.

Violation of Due Process Rights

If your due process rights were violated in the underlying case or O.R. release process, any resulting charges for violating PC 853.8 may be dismissed.

Insufficient Evidence

The prosecution has the burden of proving each element of the offense beyond a reasonable doubt. Challenging the sufficiency of the evidence can sometimes lead to an acquittal.

An experienced criminal attorney can advise you on the defenses that may apply in your particular case and develop a strategic defense to contest the charges.

What Factors May Influence Prosecution?

Prosecutors have broad discretion in deciding whether to pursue Penal Code 853.8 charges. Some factors that may influence their filing decision include:

  • The strength of evidence you willfully missed court;
  • Your criminal history and record of missing court;
  • Whether you missed court for your initial arrest charges vs. a lesser offense;
  • The severity of the underlying criminal charges involved;
  • Your excuse or explanation for missing court;
  • Your behavior after missing court, like voluntarily appearing when required;
  • Your ties to the community, compliance with conditions of release, and general law-abiding nature.

An experienced criminal lawyer can present mitigating factors to persuade prosecutors to forego charges in appropriate cases.

Plea Bargains in PC 853.8 Cases

Many Penal Code 853.8 cases end up being resolved through plea bargaining. This involves negotiating an agreement where you plead guilty or no contest to resolve the charges under favorable terms.

Potential plea bargains include:

  • Reduced Charges – Plead to a less serious offense like disturbing the peace;
  • Pre-Plea Diversion – Charges dismissed after community service or counseling;
  • Sentencing Leniency – Agree to probation and minimal fines instead of jail time.

An experienced criminal defense lawyer can advise if a plea deal is in your best interest and work to negotiate the most favorable settlement possible.

Penal Code 853.8 Violations and Immigration Consequences

Any criminal conviction can negatively impact someone who is not a U.S. citizen. Under immigration law, a PC 853.8 violation may be grounds for:

  • Refusing a visa or green card application;
  • Denying admission to the United States;
  • Removing or deporting someone from the country;
  • Barring future re-entry into the U.S.

Consulting an experienced immigration attorney is critical to understand how these charges may affect your specific immigration situation. There may be defenses to avoid immigration penalties, so legal advice is strongly recommended.

Juveniles Charged Under Penal Code 853.8

Juveniles who miss court after an O.R. release can also face charges under PC 853.8. Some key things to know:

  • Juveniles have the same constitutional and due process rights as adults in criminal proceedings.
  • Juveniles may have additional defenses related to their age, maturity, or comprehension of the O.R. release.
  • Penalties tend to be less severe than for adults, focused on rehabilitation vs. punishment.
  • Juvenile convictions are typically eligible for sealing or expungement when the minor turns 18.

Having an attorney experienced with juvenile defense is critical when minors face these charges. Counsel can advocate for diversion programs or negotiate resolutions that avoid long-term consequences.

Frequently Asked Questions

What if I miss court more than once?

You can face additional, separate charges for each time you fail to appear. Penalties will be harsher for repeat violations versus a single incident.

Can I “recall” a warrant or cancel it?

You cannot recall or cancel a warrant yourself. With an attorney’s help, you may be able to get a warrant withdrawn once you appear if there are mitigating circumstances.

What if I missed court for a civil matter like traffic court?

Failing to appear for civil proceedings generally does not lead to criminal charges. But you may face civil fines, driver’s license suspension, or contempt of court.

Can I represent myself in a PC 853.8 case?

You have the right to represent yourself but it is typically unwise in criminal matters. Hiring an attorney to defend you is strongly recommended.

Speak With a Criminal Defense Lawyer

Being arrested and released on a promise to appear can be an intimidating experience. But you don’t have to navigate the system alone. An experienced criminal defense attorney can advise you on your rights and obligations to help avoid further legal problems.

If you do end up facing charges under Penal Code 853.8, prompt legal representation is critical. A knowledgeable lawyer will fight to protect your rights, seek dismissal or reduction of charges, and achieve the most favorable outcome.

How a Lawyer Can Help

Specifically, an attorney can assist with the following:

  • Review the circumstances of your case and advise if defenses may apply;
  • Negotiate with prosecutors to reduce or dismiss charges when appropriate;
  • File motions challenging evidence, search procedures, or other constitutional issues;
  • Mount a strong defense at trial if charges are not resolved pre-trial;
  • Present mitigating factors to persuade the judge to impose a lenient sentence if convicted;
  • Explore alternatives to incarceration like community service or counseling programs.

Don’t Delay in Getting Legal Help

The stakes are high when facing criminal charges, even for a misdemeanor. Having an advocate on your side can make all the difference. Don’t wait to consult an attorney if you miss court after promising to appear.

An experienced lawyer will evaluate the case, explain your options, and start working immediately to protect your rights. With prompt action, charges may potentially be reduced or dismissed altogether. Don’t go it alone – get the help you need from a criminal defense attorney.