Failing to appear in criminal court risks harsh penalties in Virginia

Failing to appear in criminal court can make a challenging situation worse

Failing to appear in court — also known as FTA — happens too often with too many criminal defendants. As a Fairfax criminal lawyer, I know that judges take FTA’s very seriously, and that failure to appear for a felony court date exposes one to a felony rather than misdemeanor prosecution for the no show in court.

Claiming not to have received court notice of the court date is not a guaranteed winning defense

Some failing to appear defendants will assert that they never received a court-mailed notice of the court date. Certainly, mail can get misdelivered, sent to a defunct address, or mishandled by one’s fellow housemates or apartment mates. However, not receiving court-mailed notice of a court date does not automatically get an FTA defendant out of the woods, because that does not rule out whether he received notice on any prior court date, through checking in the court’s online docketing system, or through the defendant’s attorney.

Failing to appear in court is never a laughing matter

Samuel Burgess learned the hard way the risks of failing to arrive at court on time. Burgess v. Virginia,  Record No. 1270-19-1 (Va. App., May 26, 2020) (unpublished); Va. Code Code § 19.2-128. In fact, Burgess missed two court dates. First, he was present for his preliminary hearing, but then went missing when his hearing got called that same day. Second, after Burgess got indicted, he absolutely did not come to the courthouse on his trial date.

Virginia courts are not going to provide windfalls for possible non-receipt of a court mailing of a court date

The appellate record in this failing to appear case does not show whether Burgess received notice from the court of his obligation to appear in court on his trial date. Clearly, lawyers are obligated timely to tell their clients of all court dates and times, but they cannot accomplish telling the defendant the new court date unless the lawyer himself can find the defendant. With Burgess having already had a lawyer prior to the two dates that he failed to appear in court, he would have been hard pressed to claim that his lawyer did not notify Burgess of his court date in this failing to appear case.

FTA defendants deserve the presumption of innocence

A failing to appear conviction is a criminal court matter. Therefore, an FTA defendant is presumed innocent unless and until the defendant is proven guilty beyond a reasonable doubt. Nonetheless, judges do not like when criminal defendants seem to flaunt the judges’ authority, by not showing up in court.

How to avoid a Virginia failure to appear prosecution

Avoiding a Virginia failing to appear prosecution runs from the practical (calendar the court date and arrive timely) to the following additional points: Having a lawyer can delay the time your case is called in many courts, including in the Fairfax and other northern Virginia courts. Arrive well in advance of your court time, to allow not only for traffic, but also for the possible need to find alternative parking areas when the courthouse is particularly busy, and also to allow for delays caused by longer court lines for courthouse security to ask Covid-19-related health questions and to check entrants’ temperature. If you do go to court without a lawyer, once permitted to enter the courtroom, be careful about the risk of your case being called if you step out for instance to visit the restroom. It is ideal to have a friend in the courtroom to speak up for you if you step out, but with coronavirus distancing, not all courthouses are allowing friends and family members into courthouses.

Defenses against failure to appeal prosecutions and possible prosecutor responses

Sometimes a person has such a good reason for failing to appear in court as being incarcerated elsewhere. Some people get serious injuries and illnesses that require hospitalization. The great thing about having a qualified criminal defense lawyer is that the lawyer may advise the court of the defendant’s inability to appear in court and why. Some courthouses are so busy or understaffed that the defendant may not successfully reach the court clerk’s office on time to advise of inability to arrive timely in court. Certainly a criminal or DUI defendant needs to be very diligent in making efforts to timely and effectively advise the court clerk’s office about any delay arriving timely in court any inability to arrive at court.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor and DUI prosecutions. Call 703-383-1100 to schedule a free consultation with Jon Katz about your court-pending case.