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The following article was written by Terence McEnally (pictured above), a 21-year veteran lawyer that practices in the Raleigh NC area.  Terence is also the co-founder and the originator of the idea for BernieSez. More info about Terence can be found on his LinkedIn profile.

Every day I go to traffic court here in Raleigh and see several people nervously standing outside the courtroom. I frequently ask if I can help them. More often than not they’re upset and wondering what to do because they arrived late to court. They want to know:

  • Will I be arrested?
  • Is my license suspended now?
  • Can I do anything to get a new court date?
  • Can I still go in the courtroom now and get a new date or handle my case?
  • What do I do?

 

Here’s what I tell them:

 

Try NOT to be late

Office Watch

Here in Raleigh NC (and likely in all the NC traffic and misdemeanor courts) you need to arrive to court (the court ROOM that has your case, that is) sometime before 9:00 AM (or 2:00 PM if it’s set for the afternoon session). That’s because 9:00 (or 2:00 PM as the case may be) is when the DA gets all the files together and calls the names of the people who have cases for the that session. When you answer, he puts your case in a pile of all the cases for the folks who answer and will eventually call you up to talk to you about your case, ask you if you are in need of an appointed lawyer etc.
If you do not answer, because you are not in court and are still “arriving”, don’t sweat it; there’s usually a second calendar call about 45 minutes later for all the folks who had problems finding the right court room or were getting a babysitter, or had car trouble, etc. As long as you are there for the second calendar call, no big deal. You’re good to go. But don’t think this means that you can waltz in late and all is well. If the DA decides to do the second calendar call a a bit earlier than usual and you come in 15 minutes after, you can still have problems. Be on time is the first rule to avoiding problems. 

If you happen to miss the second calendar call, this is when the issues can start

uh-oh

But even then there’s really no need to panic. First of all, if you have a lawyer, as long as your lawyer knows you’re there and can get in touch with you to talk about your case and tell the court why you’re late and so on, not a big deal generally; he or she can simply “pull the file” himself and hand it to the DA to talk about the case and make sure it doesn’t go in the pile of files where folks don’t come to court and no one has any idea where they are or if they’re coming late or whatever. So even if you arrive a little late, if you have a lawyer, he can fix it so you don’t have problems usually.
If you have a lawyer and you know you are running late, at least call him up and let him know what the deal is. That way he can tell your story to the judge and the DA and maybe buy you some more time. If you do not have a lawyer then at least go into the court room when you get there (late) and sit patiently. At some point there will be a moment of quiet when you can—very courteously and humbly—inform the DA that you had some hardship or other and that you are just now arriving.
What happens next all depends on who the DA is in your particular court room. If you have good luck and the DA is a nice guy and not too busy and not in a shitty mood, you can sometimes get them to pull your file and talk to you about the case, plead it, get a new court date etc, EVEN THOUGH YOU ARRIVED LATE. A little courtesy and humble attitude goes a long way here. If they see arrogance or bad attitude you can bet your last buck it’ll not be good. No guarantees, but this is the best approach if you do not have a lawyer.

There are some cases where even having a lawyer might not help you when you don’t show up on time

no-excuses
If the case is very old (has been in court and continued a few times) the judges and DA’s generally get pretty grumpy when you arrive late. If the case is set for trial and there are witnesses in court under subpoena because it is “for trial” it may make it hard for the lawyer (or you) to convince the judge to hold their horses while you figure out your babysitter issues and so on. Don’t blame the lawyer, don’t blame the judge, it’s just the way it is. Think of it like this: if you were the victim in some case, or a witness, and you didn’t want to come to court in the first place but someone sent you a subpoena saying you have to come anyway, you’d be pissed if they kept you waiting around all day for the defendant to show up. Same deal. Just keep that in mind.

Bottom line:

  • Get there on time and even a bit early
  • If you have a delay, make sure you call your lawyer and tell them
  • If you don’t have a lawyer, go on in the court room where your case is set and wait patiently and, when the time comes, talk to the DA and tell them your situation

What does “Call and Failed” mean?

Let’s assume you did all this and the DA or your lawyer tells you that you’re still “called and failed”. Your first question is “what the hell does that mean?” Fine. “Called and Failed” is shorthand courthouse talk (in NC anyway) for “the court CALLED your case and you FAILED to answer up“. Basically it’s the “official” notification in the court records of your absence. In NC traffic court this usually means that the clerk and then the judge write on the file down at the bottom in a little pre-printed spot that in fact you were called out and did not show up. Now that sounds bad but it’s not usually as bad as you think. Being called and failed doesn’t mean—on its own—that there are any bad consequences. It is just an official notation in the court record that you didn’t show up on time (or at all).

If there is a bond on you, and you fail to show up, your bondsman can handcuff you and drag you to jail

handcuffs-1
Now if your case is “called and failed” a couple of things can happen: First, if there is a bond on you, like maybe for a DWI or an assault or some sort of “more serious case”, the bail bondsman who you paid to get you out of jail is gonna know about it. They generally keep close track of court dates and who shows up or not. That’s because if you don’t show up, the clock starts ticking for the bondsman who MAY have to pony up some $$$, as he agreed with the court when he got you out of jail. Remember, a bond is money pledged as security to guarantee you show up. Don’t show up and you—or you bondsman—stands to forfeit the money. And that’s bad enough, but the worst thing is that if you fail to show up, the bondsman himself can come looking for you and, assuming he finds you, can put HIS OWN handcuffs on you and drag you off to jail. Yep. Sorry. That’s the way it is. Bail bondsmen have authority to come get you if you violate the terms of the bonding agreement (and one such term is that you SHOW UP FOR ALL COURT APPEARANCES that you’re supposed to). That’s called “off bonding” and it’s perfectly legal.
But if that’s not bad enough, other consequences may come too: If the Judge was a real asshole, he might decide to increase your bond or require that you post one even though you were not required to do so when you were arrested or cited ion the first place. Worse still is that in many cases, depending on the level of the offense, the judge can (and often does) issue an order for your arrest, meaning not only might you have problems with the bail bondsman, but the cops are gonna come looking for you too. 

Not usually applicable for minor infractions and cases

not-applicable
Now there is a little bit of sunlight here, so listen up. If you miss court on a little bitty traffic ticket, like running a red light or a simple speeding case, if you couldn’t be arrested for the offense in the first place, then the court doesn’t have any power to arrest you just because you miss your court date. But be careful, it’s not always like this. For example, the following things can get you arrested:
  • driving with no license (NOL). That’s a charge that is actually a misdemeanor and although cops don’t usually arrest you for it, they can
  • So is careless and reckless driving
  • So is driving with no insurance
  • So is driving on a revoked license

In fact there are quite a few traffic type charges where the cops don’t usually arrest you (they just give you a ticket) but where IF YOU MISS YOUR COURT the judge CAN send out an order for your arrest. Now that being said, it doesn’t necessarily mean the court WILL send out an order for your arrest (an “OFA”). You see there are so many folks who don’t come to court for this little stuff that the police and the court just do not have the manpower to go out and try to arrest them all; they usually reserve that for the most serious cases.

Sidenote: I’d also mention cases where in the beginning there is a criminal summons. A criminal summons is like a ticket but it’s where some citizen goes down to the magistrate and swears out a case against you. The summons just says “come to court” and usually you get it when the sheriff comes to your house and gives it to you. Just like the other cases I described, there’s no arrest in the beginning, but if you MISS your court date, there can be (and usually is) an order for arrest that comes right after.

Problems with the DMV

ncdmv
Other than having the cops come looking for you to serve an OFA or the bondsman coming to find you to throw you back in jail on an “off-bond” there are also problems you can have with the DMV. If you miss a court date for a traffic case like speeding or DWI or NOL or even a seatbelt ticket, after 20 days, a notice is sent from the court to the NCDMV notifying them that you didn’t show up. The DMV then sends you a notice at your last known address that informs you that your license will be suspended on ____ date for not showing up. It’s good to avoid this kind of suspension because if you do get suspended you will have to pay more money, a so-called “restoration fee” to the DMV to “restore” your driving status and might even have to pay to get another license issued to you. All that is on top of the extra $200 that the court will add on to your case if you get found guilty or plead to the underlying offense later on. All of this adds up quickly and can set you back several hundred $$.
Now there’s some good news in all this too: For little traffic tickets, it takes a long time for the DMV to suspend your license for not going to court. Remember, the DMV won’t even know about it for 20 days at the minimum and the actual revocation won’t happen for 60 days after that. For more serious stuff, the good news is that OFA’s do not usually issue RIGHT AWAY when you do not show up (on like a DWI or something). There is usually a LITTLE lag time between the judge noting that you didn’t show up (when the case is “called and failed”) and the time when the OFA is actually in the court’s computer system (and the cops know about it). This is simply because there’s just no way that the clerks (the ones who actually activate the OFA’s) can keep up with the piles of work that they have to do and still get all the OFA’s issued each and every day “in real time”. Sometimes they’re faster, sometimes slower, but it’s just not a given that the OFA will be sent that same day that you fail to show up. That being said, there is a priority that operates; DWI’s and other serious offenses will have OFA’s issued before the little cases like careless and reckless driving, or driving with a revoked license, no insurance, etc, etc. So maybe this buys you a little time. Maybe.

Ok, now what?

Step 1:

If you do not have an attorney, on the day AFTER you fail to show up (or as soon as you can after that) go to the court house and ask the clerks what you need to do to ask for a new court date. In Raleigh, where I practice, this happens so much that there is a basket of pre-printed forms kept on hand for folks to fill out to tell the judge why they missed court and ask for a new date. This may not be exactly the same where you are, but it’s probably close.
By the way: There is VERY little likelihood that you will be arrested while you’re standing in line at the courthouse asking about how to get a new court date, so don’t sweat that. Think of it this way: if the cops arrested folks in court in line looking for new court dates no one would want to come to court and try to get a new date and things would just be WORSE. Therefore, unless you didn’t show up for some serious case, like murder, you’re probably gonna be ok.
If they require a form to be filled-out where you are, then do it and do it right. If you have any documents that help you prove it wasn’t your fault you missed court (like a note from a doctor’s appointment or something showing that you had to be in court somewhere else or you were in jail somewhere or in a car wreck etc etc), it would be a good idea to have a copy stapled to the form you fill out (it’s really called a “motion” for a new court date) so the judge can see it and perhaps be convinced you’re telling the truth. Also, make sure you write legibly: if the judge cannot read what you write he cannot make any decision about whether you should be allowed another try or not. And while you’re at it, make sure you choose a tone which is even a little bit apologetic and humble when you write.  If you act like a big asshole and seem to feel this whole court deal is just a big inconvenience, then the judge may not be very inclined to do you a favor. Sorry, but judges are humans too; that’s just the way it is. Now if you have an attorney, instead of doing all this stuff yourself of course, what you need to do is go to your lawyer and explain the deal. Make sure you bring the supporting documents too. Sometimes the attorney can go right to the judge and get him to sign the motion and allow a new date (which is a good thing because it also recalls any order for arrest and stops any bond forfeitures and can also stop the DMV from taking any action to revoke your license if it’s a traffic case you failed to show for).
If you are filing the motion on your own, you’ll be asked to write your address on another page so you can be notified by mail when any action is taken allowing (or disallowing) your request for a new date. That usually takes about two weeks, and I’m sure you’ll be worried all that time (another reason to consider getting a lawyer!). Do note that just because you filed the motion it doesn’t mean that the OFA is “on hold”. In fact, here in Raleigh the clerks are pretty careful about telling you that there will still be an OFA and just because you filed a motion it doesn’t “buy you time”. BTW, if you have one of those cases where there is a bondsman involved, it is usually a good idea to let them know that you are trying to get a new date. In twenty years of practice I have yet to meet a bondsman who was not willing to give his client a bit of leeway to get a new court date and preferred instead to run out and try to capture them and off bond them. I look at it like this: they’ve got the power to arrest you for missing court and they will know about your having been called and failed but it will take them some amount of work and effort to track you down. Less work for them if the called and failed is stricken and you are given a new court date. They’ll usually prefer to try this option first. Additionally, they’ll see that you’re a straight guy and that you want to try and get the case back on track. That’ll make Mr. Bail Bonds feel you’re not a risk of flight (and fleeing the jurisdiction is something else they can use as an excuse to grab you and toss you back in jail).

Step 2:

Ok. Assuming the Judge sees it your way, you’re golden. You (or your lawyer) filed the motion for a new court date, the judge granted it, and the case is set for court again. All is well:
  • No cops after you
  • No license revocation
  • No bail bondsman on your ass

Just make sure you show up to court on time this time around so you can avoid this whole mess happening again. Fine.

 

But what if it goes the other way?

denied

What if the judge DENIES your (or your lawyer’s) motion for a new date? Couple ways to go here:

  1. If it’s a case where there is an order for your arrest, or there will be, I always tell my clients there are two possibilities: find the cops or let them find you. The first option, turning yourself in, is often IMHO the best way to go. All you gotta do is go to the jail, tell them you’re there because there’s an OFA and let the system do its work. It may take some time for them to process you, and you may find yourself waiting around for hours while it all gets done, but in the end, you’ll be taken in, and, eventually, taken before a judge, and a new bond set and a new court date assigned. Don’t be surprised if the judge pops you with a bond this time that’s higher than the last one; remember, the bond that was set the first time was supposed to make you want to come to court and you didn’t. The thinking usually is that a higher bond may give you more of an incentive to get to court! If you turn yourself in at least you can make the argument to the judge that you were cooperative, and maybe that’s enough to prevent a super-high bond. So, assuming the bond isn’t too horribly high and you can pay it, there you are out again, just like before.
  2. The other option, waiting for the cops to find you (or hoping and praying that they never do) is really not the best. It always seems that they show up at the worst possible time (the middle of the night, in the middle of your kid’s birthday party, when you’re getting ready to go to work etc etc). If you turn yourself in, at least you have some control over the situation. What’s more, like I said above, if you turn yourself in you can always play the righteous “I’m here to cooperate” card and that helps a lot to get a fair/low bond after your arrest. OTOH, if you are pretty sure that the cops will never find you, maybe because you no longer live at the address that is on the charge or arrest documents, you might have a very low likelihood of getting arrested for a long while. In fact, I have seen folks in this situation go years and years without getting arrested. Before even thinking about that however, I’d say you better go talk to a lawyer for sure since it is a criminal offense to intentionally absent yourself without excuse when duly summoned to court.

One last consideration – The VL’d Case

We’ve talked about what to do after you miss your court date and some of the consequences that can follow if you do:
  • orders for arrest
  • bondsmen and cops looking for you
  • license revocation

These are all part of the deal. One last item to consider in the list of consequences is the “VL” case. When you don’t show up to court and are unable to get a new court date for whatever reason, after a period of time the DA will dismiss your case. But don’t go get all excited. This is not the good kind of dismissal. This is an administrative dismissal. This is the “voluntary dismissal with leave to reinstate” or “VL” dismissal. This means that the DA doesn’t have to worry about messing with the case anymore. He doesn’t have to put it on a calendar when the cop will be in court like he usually would. He doesn’t have to worry about finding and subpoenaing witnesses. He doesn’t have to worry about anything. That’s because when the case is VL’d it means he can reinstate it when he chooses, and usually that means when you finally decide to come to court and handle it. And while it may sound like a pretty good deal that the DA would just take your case and sort of “forget about it”, if your case happens to be a traffic case, it really isn’t good news at all.

You see if your case is VL’d the DMV here in NC will still see that the case is pending and unresolved. And although you may not have a court date coming up, and you may even have been UNABLE to get a new court date for whatever reason after trying all the stuff I said in this blog piece, that don’t mean shit to the DMV. All they see is that the case is unresolved. That means for you, you cannot get a drivers license at least until it is resolved. Moreover, your right to drive is SUSPENDED for at least until it is resolved so if you go out driving around and get popped, you will almost certainly get a ticket for driving with a revoked license. Now here in the 10th district in NC (Wake County) for simple traffic tickets, the way the DA handles these cases is this:

  • You come to court and fill out a form requesting that your case be set on such and such a day.
  • Then, on that day. you come in and talk to the DA and try and cut a deal with him.
  • That deal may be to plead to all or some of the charges or plead to some reduced charges based on what sort of deal you and your attorney can make with the DA.

Sounds easy enough but there’s a rub. Taking care of these charges is really dependent upon the willingness of the DA to reinstate them, and THAT in turn is dependent upon the DA and you coming to a deal that you can both live with. But be careful: if the DA wants something you aren’t willing to do in order to reinstate the charges, he may just tell you you’re out of luck and REFUSE to reinstate the charges.

 

What then? Well nothing really, except that you’re kind of back where you started with a revoked license. So basically the DA has you by the balls; plead and do what he says or have a revoked license forever. Not much of a choice if you ask me.

The bottom line

Just to recap: Remember this:
  • Get to court on time.
  • If you do come late, make sure it’s not so late that you cannot answer the second calendar call. Might be a good idea to let your lawyer know what’s happening too.
  • If you do miss both calendars, make sure you at least try and talk to the DA even if it takes a lot of waiting around.
  • If all else fails, make sure you fill out a motion to get a new court date as soon as humanly possible and make a good effort to show why the court should in fairness give you another chance.

 

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