121.1Failure to Appear
Key Concepts
- If the defendant fails to appear for court as ordered, he or she may be: (i) arrested for violating pretrial release conditions; (ii) held in contempt; or (iii) criminally charged with failure to appear.
- The state may take a voluntary dismissal with leave to reinstate the case (commonly referred to as a “V/L dismissal”) if the defendant fails to appear for court and cannot be readily located.
- V/L cases are removed from the court’s active docket, but otherwise retain their validity and all other legal process (such as an outstanding warrant) remains in effect.
Responding to Defendant’s Failure to Appear
If a defendant fails to appear as ordered for a court proceeding, the state and the court have several options for sanctioning the defendant and ensuring his attendance at future proceedings.
Notice to DMV
If the offense for which the defendant failed to appear is a motor vehicle offense, and the defendant does not appear within 20 days of the missed court date or otherwise dispose of the charge, the clerk must report the failure to appear to the Division of Motor Vehicles ("DMV"). See G.S. 20-24.2. DMV is statutorily required to revoke the defendant's driver's license upon receipt of the notice of failure to appear, and his or her license will remain revoked until the case is disposed (or the defendant proves that he or she is not the person who was charged). See G.S. 20-24.1.
Order for Arrest ("OFA")
The presiding judge may revoke the defendant’s pretrial release order and issue a new order for the defendant’s arrest. See G.S. 15A-302(f) ("If a defendant fails to appear in court as directed by a citation that charges the defendant with a misdemeanor, an order for arrest for failure to appear may be issued"); G.S. 15A-303(e)(2) ("an order for arrest, as provided in G.S. 15A-305, may issue for the arrest of any person who fails to appear as directed"); G.S. 15A-305(b)(3) (order for arrest may issue when defendant fails to appear as ordered by a duly executied criminal summons or a citation issued by a law enforcement officer); G.S. 15A-534(f) (“For good cause shown any judge may at any time revoke an order of pretrial release.”). For more information, see the related entry on Pretrial Release – Modification and Revocation.
Custody by another agency
Even if the prosecutor is aware that the only reason the defendant is not in court is because he was taken into custody by another agency (e.g., taken into custody by ICE for deportation proceedings), the prosecutor can still ask the court to issue an arrest order to ensure that the defendant will be detained and returned to court if he is released by that agency. See North Carolina State Bar Ethics Opinion, 2013 FEO 6 (noting that “there is no legal requirement that a defendant’s failure to appear in court be willful,” and it is therefore left to the prosecutor’s “professional discretion” whether to seek an arrest order under these circumstances).
However, if the offense for which the person failed to appear is only an infraction that was charged by citation (e.g., a routine traffic ticket charged by an officer), the court must issue a criminal summons to appear rather than order for arrest. See G.S. 15A-302(f) (order for arrest on failure to appear in response to a citation limited to misdemeanors). If the defendant thereafter fails to appear in response to the summons, then the court may enter an order to show cause for contempt, as discussed in the next section below.
Contempt
If the defendant's failure to appear is willful, he or she may be held in contempt for disobeying the summons or other court order to appear. See, e.g., G.S. 5A-11(a)(3) (contempt for willful disobedience of court order); G.S. 5A-11(a)(7) (contempt for willful or grossly negligent failure to comply with schedule of court, resulting in substantial interference with court’s business); G.S. 15A-303(e)(3) ("A person served with criminal summons who willfully fails to appear as directed may be punished for contempt as provided in G.S. 5A-11"); Cox v. Cox, 92 N.C. App. 702 (1989) (failure to appear in court is indirect criminal contempt). If there is probable cause to believe that the defendant will likewise fail to appear in court in response to the contempt order, the judge may also issue an order for the defendant’s arrest along with the show cause order for contempt. See G.S. 5A-16(b); see also AOC-CR-219 (Show Cause Order). For more information on pursuing this remedy, see the related entry on Criminal Contempt (Section D, “Indirect Contempt – Plenary Proceedings”).
Criminal Failure to Appear ("FTA")
Alternatively, the state may choose to criminally charge the defendant with failure to appear (commonly known as “FTA”) pursuant to either G.S. 15A-543 (most criminal offenses) or G.S. 20-28(a3) (implied-consent offenses). See State v. Dammons, 159 N.C. App. 284 (2003) (where defendant’s conduct could be punished as either contempt under G.S. 5A-12(a) or as failure to appear under G.S. 15A-543, “it was within the prosecutor’s discretion to decide under which statute the State wished to proceed”).
- Most Criminal Offenses
Under G.S. 15A-543, the defendant is guilty of criminal failure to appear if he or she (i) was out of custody on bail or other release conditions and (ii) willfully (iii) failed to appear in court or before a judicial official as ordered. G.S. 15A-543(a). If the defendant was on release in connection with a pending felony, or on release following a conviction in superior court, the failure to appear is a Class I felony. G.S. 15A-543(b). In all other cases (e.g., if the person was out of custody in connection with a pending misdemeanor), the failure to appear is a Class 2 misdemeanor. G.S. 15A-543(c). Evidence that the defendant had actual knowledge of the court date but failed to appear as directed is generally sufficient evidence to prove the offense. See, e.g., State v. Dammons, 159 N.C. App. 284 (2003) (release order signed by defendant and read to him by bondsman sufficient to prove he was “ordered” to come to court); State v. Goble, 205 N.C. App. 310 (2010) (defendant’s signature on appearance bond and subsequent failure to appear were sufficient proof, even though defendant did not also sign the conditions of release and release order). - Implied Consent Offenses
Under G.S. 20-28(a3), the defendant may be prosecuted for a Class 1 misdemeanor if he or she (i) fails to appear (ii) for two years (iii) from the date that he or she was charged with an implied-consent offense. G.S. 20-28(a3)(2). “Implied-consent offense” includes DWI, habitual DWI, commercial DWI, driving after consuming by a person under 21, transporting an open container, operating a school bus or child care vehicle after consuming alcohol, violation of a limited driving privilege, and murder, manslaughter, death, or serious injury by motor vehicle based on impaired driving, as well any repealed or superseded offense that is substantially similar these offenses, or a substantially similar offense from another state. See G.S. 20-4.01(24a); 20-16.2(a1). - Statute of Limitations?
There is no statute of limitations for felonies in North Carolina, so felony failure to appear under G.S. 15A-543(b) may be charged at any time.
For misdemeanor failure to appear, the language in G.S. 15A-543(c) and G.S. 20-28(a3) suggests that the offense is “completed” once the defendant misses court (or, in the case of implied-consent offenses, once the defendant misses court and an additional two years have passed). Therefore, in order to comply with the two-year statute of limitations for misdemeanors set forth in G.S. 15-1, the state would need to charge the failure to appear at some point during the next two years following the missed court date (or, in the case of implied-consent offenses, within the next two years after the defendant missed court and an additional two years have passed).
Continuing offense?
The state could argue that the offense of failure to appear is a “continuing” one, so it remains ongoing until such time as the defendant finally re-appears in court -- even if that doesn’t happen for 20 years or more. If the offense is "continuing," then the state should be permitted to charge the defendant with misdemeanor failure to appear antyime within two years after the defendant finally appeared in court. There are no North Carolina appellate decisions addressing this issue, but some other jurisdictions have adopted this view. See, e.g., United States v. Green, 305 F.3d 422, 433 (6th Cir. 2002) (finding that failure to appear is a continuing offense because “[e]ach day that the defendant fails to appear enhances the threat and the dangers posed by the delay and demonstrates the continuing nature of the offense”). For further discussion of this issue (including contrary case law), see Jeff Welty, “Failure to Appear on DWIs,” UNC School of Government, December 2009, and Shea Denning, "Applying the Statute of Limitations to Failure to Appear for an Implied Consent Offense," N.C. Criminal Law Blog, July 1, 2021.
Voluntary Dismissal with Leave to Reinstate ("V/L")
When a defendant fails to appear in court for criminal charges, the state may choose to take a voluntary dismissal with leave to reinstate the charges at a later time, commonly known as a “V/L dismissal” or putting the case in “V/L status.” See G.S. 15A-932(a) (V/L for non-appearance); see also 15A-932(a1) (V/L pursuant to a deferred prosecution agreement).
What Is It? When Does it Apply?
Under G.S. 15A-932(a), the prosecutor may enter a V/L dismissal when: (i) the defendant cannot be readily found to be served with an arrest order after an indictment; or (ii) the defendant fails to appear at a criminal proceeding at which his attendance is required, and the prosecutor believes the defendant cannot be readily found. Id. The prosecutor may enter the V/L dismissal orally in open court (in which case the clerk must note the V/L nature of the dismissal in the record) or by filing a written notice of the V/L dismissal with the clerk. See G.S. 15A-932(c); see also AOC-CR-307B (second section, “Dismissal with Leave”).
Always file a V/L form
To avoid any risk of confusion in the record as to whether the case was dismissed with leave ("V/L") or permanently dismissed ("V/D"), the better practice is for the prosecutor to always file a signed V/L dismissal form, clearly indicating the nature of the dismissal and the reason for it. See AOC-CR-307B (second section, “Dismissal with Leave”); see also State v. Knott, 164 N.C. App. 212 (2004) (case had to be remanded for findings of fact to determine whether V/L cases were also "dismissed," since "the record is devoid of an actual agreement that the dismissals in district court were to be a final disposition of those charges").
What is the Legal Effect?
Entry of a V/L dismissal removes the case from the active court docket, but otherwise “all process outstanding retains its validity, and all necessary actions to apprehend the defendant, investigate the case, or otherwise further its prosecution may be taken, including the issuance of nontestimonial identification orders, search warrants, new process, initiation of extradition proceedings, and the like.” G.S. 15A-932(b). See, e.g., State v. Bell, 156 N.C. App. 350 (2003) (the V/L statute is a “‘procedural calendaring device’ intended not to suspend or hamper prosecution of a case, but rather to facilitate its continuance during a period of time when a defendant is absent”); State v. Mark, 154 N.C. App. 341 (2002), aff’d, 357 N.C. 242 (trial court correctly imposed aggravated sentence for defendant committing the offense “while on pretrial release on another charge,” even though that pretrial release was in relation to cases in V/L status, because the V/L charges were still considered valid and pending).
When the defendant is apprehended, or when the defendant's apprehension seems imminent, the prosecutor may reinstate the V/L charges and resume the prosecution. For more information on this process, see the next entry on Reinstatement of V/L Cases.
