Bail Jumping—or Failing to Appear After Bailing Out

Forfeiting bail isn't necessarily all an absent defendant will have to deal with.

By , Attorney

Under state and federal law, failure to appear in court after bailing out of jail violates not only a court order but also constitutes a separate offense. As a result, defendants who "jump bail" can face multiple consequences, including:

  • forfeiting their bond (the amount they paid for bail)
  • continuing to face the pending criminal charges, and
  • potentially facing additional charges for bail jumping.

Because bail jumping is its own offense, the defendant's innocence as to the charges that led to arrest typically isn't a defense to the failure to appear.

Bail Jumping: Crime and Penalties

States define the crime and penalties for bail jumping differently. (It might even be called a different name, such as criminal failure to appear, release violation, or crime of nonappearance.)

Crime. Some states define bail jumping as a defendant failing to show up in court (thereby forfeiting bond) and then failing to surrender within a set time period. In these states, a defendant might have 30 days to surrender after bond forfeiture before criminal charges can be filed. Other states make failure to appear without good cause a crime and do not allow a grace period. Certain states make bail jumping an offense only where the defendant faces felony charges for the pending case, while others provide that any kind of charge will suffice.

Penalty. Many states tie the penalty for bail jumping to the underlying charges. For instance, the law might impose a misdemeanor penalty when the underlying charges are misdemeanors and a felony penalty for underlying felony charges. Or a state might even set different degrees of bail jumping within the misdemeanor and felony categories. And some states use straight penalties, meaning all bail jumping offenses carry the same penalty.

Defendant's State of Mind: Knowing, Willful, Intentional

In most states, the prosecution must prove that the defendant intentionally, willfully, or knowingly failed to show up to court—it will usually suffice to show that the defendant knew of the requisite court appearance and simply didn't appear. In these states and others, there must be proof that the defendant received notice of the appearance date. Depending on the jurisdiction, that notice can take various forms, including a letter mailed to the defendant and even the wording of the bail bond.

Only a few states use a strict liability standard for bail jumping. Strict liability means any violation—even if the defendant didn't act negligently, knowingly, or intentionally—can result in criminal charges.

Defenses and Excuses for Failure to Appear

Whether a defendant's excuse for not showing up to court (and potentially failing to surrender thereafter) constitutes a defense depends on the facts and the jurisdiction. It's often a valid defense that the defendant couldn't have avoided the failure to appear due to circumstances beyond his or her control. But courts have rejected excuses due to intoxication and drug use, and have been skeptical of poorly substantiated claims of illness. In some states, even the fact of being incarcerated in another jurisdiction isn't an excuse for failing to be in court when required.

Example: After her arrest for drug possession, Kelly posts $5,000 to bail out of jail. After signing a bail document that indicates the date for her court appearance and receiving separate notice of the date in the mail, she fails to show up for the appearance. Some 31 days later, she still hasn't turned herself in. After her re-arrest, two witnesses at her trial for bail jumping testify that they saw Kelly the day after her scheduled court appearance and she appeared to be really sick. A jury convicts her of bail jumping and she appeals. The court rejects her excuse, noting that she presented insufficient evidence that she couldn't have made it to court; she didn't present proof along the lines that she had been in the hospital when she was supposed to be in court. (State v. Fredrick, 123 Wash. App. 347 (2004).)

Talk to a Lawyer

If you've been charged with bail jumping or missed your court date and don't know what to do, talk to a local criminal defense attorney. A knowledgeable lawyer will be able to advise you as to the applicable law, the local practices, and your best course of action, including whether surrendering to the court or the authorities may prevent a bail jumping charge.

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