A court may issue a bench warrant for someone who has failed to appear or otherwise comply with court orders. Bench warrants may be issued in both criminal and civil cases. While a bench warrant is itself a penalty, other penalties may come along with it, such as fines, fees, increased bail, increased or additional charges, an ankle bracelet or jail.
Arrest Warrants Generally
An arrest warrant, or a warrant for arrest, authorizes the police to arrest someone; that is, pick him up and take him into police custody. Arrest warrants are issued by a judge or magistrate. A warrant is not always required for a lawful arrest. A police officer may arrest someone without a warrant if she has probable cause along with exigent circumstances, such as she saw someone commit a crime or has a reasonable suspicion that someone committed a crime.
Without probable cause, however, a warrant must be issued. The authorities may seek an arrest warrant from the court if they’ve built up a criminal case against someone. They must present their evidence to the judge, who then decides whether the evidence is sufficient to make an arrest. If the court is satisfied by the evidence, it will issue the warrant.
The court also may issue a warrant without a request from law enforcement in certain circumstances, and it can do so in either a civil or criminal case. This type of warrant is called a bench warrant.
What Is a Bench Warrant?
A bench warrant is an arrest warrant issued directly by the court overseeing a proceeding to punish a party for failing or refusing to comply with court rules and directives. The name comes from the fact that it is issued from the bench. The warrant is not requested by law enforcement; instead, the judge makes the decision herself to issue this warrant.
Bench warrants may be issued in either civil or criminal matters when a party fails to comply with a court order, fails to appear when required, or misbehaves to a severe degree at a court hearing.
Civil vs. Criminal Cases
Every state has two sets of laws: civil laws and criminal laws. Civil laws relate to matters that are not crimes, such as the formation of businesses or making insurance claims. Criminal laws are the laws that set forth what activities are considered crimes, such as murder, arson, theft, kidnapping, drug sales and drug possession.
Criminal charges are brought and prosecuted in criminal proceedings. Disputes over civil laws are brought in civil lawsuits.
Criminal Proceedings: Prosecution of Crimes
A criminal court case is a case in which the state or federal government is on one side, and a person accused of a crime is on the other. The government files charges against the accused through a prosecutor, who is an attorney who represents the government in criminal matters. The person accused is the defendant, who may represent himself, hire an attorney, or ask for a public defender to represent him for no charge if he cannot afford his own counsel.
The purpose of criminal proceedings is to punish those who commit crimes and deter further criminal activity. If someone is convicted of a crime, she may have to pay fines and also may be sentenced to jail or prison. If the jury determines the accused did not commit the crime, the accused is acquitted.
Civil Proceedings: Private Parties and Civil Matters
Civil proceedings are any court cases that do not involve criminal charges. Breach of contract, personal injury, medical malpractice, bankruptcy, divorce, workers’ compensation and intellectual property litigation are just a few of the types of cases that are considered civil matters.
In a civil case, money is often at stake, or the parties may be seeking something further, such as custody, property rights, division of assets or a bankruptcy discharge. Civil cases result in a judgment rather than a conviction or acquittal.
Civil matters usually involve private parties. Governmental agencies may be parties to civil lawsuits, and they are subject to the same procedural rules as any other party.
Complying With Court Orders
In both civil and criminal cases, the judge will sign orders that require the parties to do certain things. In a criminal case, an order may require a party to appear at a hearing, pay fines, submit to drug testing, or do other things related to the charge and sentencing. In a civil case, the court will enter orders that require parties to exchange information, appear and testify, and file certain documents.
In either case, parties are required to comply with all orders issued by the judge and behave appropriately when in court.
If a party has a good reason for failing to comply, such as a death in the family or a motor vehicle accident, the court may give him an additional chance and simply reschedule the hearing. However, when a party defies court orders repeatedly without cause or engages in violent or disruptive conduct in court, the judge may, on his own, decide to issue a bench warrant.
Criminal Bench Warrants
In most jurisdictions, after a person is arrested and charged with a crime, the court sets a hearing date to read the charges and allow the accused to enter a plea. If bail is set high, or if there is no bail, the defendant will likely remain in prison while she awaits the court date. She will be delivered to the court by law enforcement. However, if the charges are minor or bail is posted, she may be released pending the court date. In that case, it’s up to her to go to court on the scheduled date as required. If the criminal defendant fails to appear for her court date, the court may issue a bench warrant.
The judge also may issue a bench warrant for other reasons, such as when a criminal defendant fails to comply with his probation terms, fails to pay a fine or violates a restraining order. In all these cases, the defendant has failed to do what the court ordered him to do.
Civil Bench Warrants
Bench warrants also may be issued in civil cases when a party to a civil lawsuit repeatedly fails to comply with court orders. For instance, if a company sues its former president for breach of contract, and, during the litigation, the former president fails to appear at deposition despite multiple court orders to do so, the court may issue a bench warrant against her. The same is true if she fails to turn over documents, appear in court or do anything else ordered by the court.
Bench warrants are something of an extreme remedy in a civil case. Judges typically issue bench warrants in civil matters only in situations in which the party’s non-compliance and lack of cooperation are particularly egregious.
Penalties Concurrent With Bench Warrants
When a judge issues a bench warrant, he also may order other forms of punishment in addition to the warrant.
In a civil case, these may include monetary sanctions, such as payment of the other side’s attorney fees as well as court costs. Some situations may even give the judge the ability to throw out someone’s case or disregard his defense.
In a criminal matter, the defendant may be subject to additional fines, increased bail and even more criminal charges in addition to those already in place. The defendant also may have to deal with increased jail time, home confinement, or an electronic monitoring device or ankle bracelet.
Bench Warrant Procedure
Every state and local court system has its own procedures for handling bench warrants. Generally, however, the court will rule that the warrant will be issued. The signed warrant will be provided to law enforcement to serve the warrant and make the arrest.
Bench warrants become a part of a person’s record, and law enforcement will have access to the information contained in the warrant at all times. If the person against whom the warrant is issued has an encounter with the police and the police run his record, they will see the warrant and can arrest him on the spot. This is true even if the encounter is something relatively benign, such as a routine traffic stop or littering.
In some cases, the police may go actively looking for the subject, just as they would with a regular arrest warrant. A person subject to a bench warrant can be arrested anywhere, including at home, at work or out in public.
Bench Warrant Arrests
Arrests pursuant to bench warrants are conducted in the same manner as those pursuant to ordinary arrest warrants. The warrant is served, and the individual is taken into custody.
Once the person is arrested, what happens next depends upon the jurisdiction. In Pennsylvania, for example, the arrested party must wait in jail until the judge can see her. The judge must see her within 72 hours of the arrest; otherwise, the warrant will expire, and the police must release her. The court can also set bail for a bench warrant arrest.
In California, on the other hand, bench warrants do not expire. The warrant remains in effect until the judge recalls it or the person subject to the warrant takes steps to dispose of it. Once the person is arrested, however, he must receive a court hearing within a reasonable period of time.
Read More: What Is a Bench Warrant?
Disposing of a Bench Warrant
Bench warrants show up in criminal background checks and will remain in the police database until they expire or are otherwise disposed of.
A bench warrant may be cleared once the subject is arrested and appears before the judge. At the hearing, the judge will make further orders and may give the subject another opportunity to correct the behavior that caused the bench warrant in the first place. The judge may then recall or quash the warrant.
Someone who is subject to a bench warrant also may take affirmative action to dispose of the warrant in other ways. He may hire private counsel to file motions with the court to quash the warrant for various reasons, such as procedural defects or violations of Constitutional rights.
Bench Warrant Expiration
A bench warrant may expire if it is not served on the subject within the time required by the state and by local rules. In that case, the judge would need to issue a new warrant or decide on another course of action. In some states, such as Pennsylvania, if someone is arrested on a bench warrant and is left in jail too long without seeing a judge, the warrant may expire.
A bench warrant is an arrest warrant issued directly by a judge, without the police requesting the warrant, because someone has disobeyed court orders. Bench warrants may be issued in both civil and criminal cases.
- Cornell University Law School Legal Information Institute: Bench Warrant
- Nolo: What's a Bench Warrant?
- Nolo: How to Handle a Bench Warrant or Failure to Appear in Pennsylvania
- Standard-Examiner: Utah Courts Increase Use of Civil Bench Warrants to Compel Debt Payments
- Cornell University Law School Legal Information Institute: Arrest Warrant
- The Law Office of Jason A. Volet: What is the Difference Between a Bench and Arrest Warrant in New Jersey?
- Law Offices of Jerry Nicholson: Do Warrants Expire In California?
- Cornell University Law School Legal Information Institute: Criminal Law
- Cornell University Law School Legal Information Institute: Civil Procedure
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.