When people receive a traffic ticket and do not show up to court, they are charged with a Misdemeanor Failure To Appear. This charge, classified as CVC 40508, is a misdemeanor. If a citation is sent to a collections agency and the defendant pays the entire amount owed, then the defendant also absorbed the misdemeanor failure to appear on their record.  People aren’t aware of this disposition and often discover they have the conviction when applying for a job or go through any process which includes a criminal background check.  A Misdemeanor Failure To Appear in court may not sound like a big deal, however it is still a crime. Not only can the conviction affect employment prospects but child custody disputes, immigration issues, and college applications too.

What if you’ve been charged with a Misdemeanor Failure To Appear but you haven’t paid the entire amount?

I recommend you don’t pay any more money to collections and demand to have your matter heard by a judge. You can at least have the charge reduced to an infraction or possibly have it dismissed. If you don’t want to go through the hassles of the court system, then hire an attorney to handle it properly.

What if you’ve been charged with a Misdemeanor Failure To Appear and paid the entire amount?

There are still a few ways to help your record. You can file the following motions: 1) Bail Forfeiture Set Aside , 2) 19.8, or 3) 1203.4(a).

What is a Bail Forfeiture Set Aside (BFSA) motion?

A Bail Forfeiture Set Aside Motion is a way of telling the court you want your money back and to re-open the case. Grounds for this motion being granted include, but are not limited to, : 1) a defendant being unaware he had a right to see a judge, 2) a defendant paying the amount in collections mistakenly believing it was bail to see a judge, and 3) a defendant not aware of the repercussions the convictions would have in his life.

What is the upside of a Bail Forfeiture Set Aside motion?

If this motion is granted, the money you paid to collections will be treated as credit towards any fines you would owe pending the final outcome of your case. If your case is dismissed or fines are reduced, any of the money left over would be refunded to you.  Since you were able to see a judge, you can also have your Misdemeanor Failure To Appear reduced to an infraction and maybe dismissed.  This motion is fairly common and easy to process with the courts. You don’t need to serve the prosecution notice of your intent to file and therefore this method is usually quicker than the other two motions.

What is the downside of a Bail Forfeiture Set Aside motion?

Most courts require that you file this motion within 180 days you paid the final amount. If the motion is granted, you must appear at your trial. Thus, you would need to take time off work or your schedule to reduce that misdemeanor failure to appear into an infraction.   There is no requirement that you have an attorney to file this motion but traffic clerks will often give people without an attorney the run around for the exact same motion that they readily accept from a lawyer.

What is a 19.8 motion?

This motion is used to reduce misdemeanors into infractions.  There are only certain misdemeanors that qualify under this relief and fortunately a Midemeanor Failure to Appear (CVC 40508) is one of them. If this motion is granted, your Failure To Appear misdemeanor will be reduced into in an infraction.

What is the upside of a 19.8 motion?

Unlike a 1203.4 motion discussed below, this motion is also effective for immigration or other federal matters.  There are also no time constraints as to when you can file this motion.

What is the downside of a 19.8 motion?

Unlike a Bail Forfeiture Set Aside motion, you have no possibility of getting any money back.  It takes longer to process than a BFSA motion as you would need to serve the prosecution notice of your intent to file. These motions are not common and should be personally filed with the prosecution and the court. You may also be required to appear for your hearing in court.

What is a 1203.4(a) motion?

This motion is commonly known as an expungement. It withdraws your plea of guilty or no contest and changes it to a plea of not guilty and the case is ordered dismissed.  If you have a Misdemeanor Failure To Appear, your record currently shows: 1) you were charged with a misdemeanor, 2) you plead guilty or no contest and you were convicted of that misdemeanor. An expungement would add another entry on your record to appear: 1) you were charged with a misdemeanor, 2) you were convicted, and 3)the guilty plea or conviction is withdrawn and the charge is dismissed.  In other words, an expungement makes your record look better but it doesn’t completely erase the conviction or the evidence that it took place.

What is the upside of a 1203.4(a) motion?

These motions are really common. Often, these motions can be filed and granted without ever having to physically step foot in a courtroom as long as you send a copy to the prosecution and the court. It also applies to any misdemeanor conviction unlike a 19.8 motion which only makes certain enumerated misdemeanors eligible for relief.  There are also no time constraints when you can file an expungement.

What is the downside of a 1203.4(a) motion?

You don’t get any money back for your conviction and as previously discussed, it doesn’t make your record disappear.  A criminal background check may still see the original conviction but the conviction was expunged and you would still have to disclose your original conviction to a state licensing board, the state lottery, or public office. Also, an expungement doesn’t grant relief in cases involving federal review such as immigration. Furthermore, you can only file this motion if  at least a year has lapsed since you received the misdemeanor failure to appear conviction.

Overall, deciding how to handle your misdemeanor failure to appear case depends on your individual circumstances so it’s imperative you contact an experienced attorney  to assist your needs or feel free to reach me directly at The Law Offices of Mark A. Gallagher: (800) 797 – 8406 and email: hans.socaldefense@gmail.com