Blog Post

What is a notice to appear?

Many times, the first questions clients or potential clients ask involves a form called a “Notice to Appear”. I have been asked: do I need to attend this court date? What if I miss it? Do I explain myself at this hearing? What happens at the hearing?

All are great questions, all pertaining to these Notice to Appear forms. I’ve taken the time to write a quick 101 on these forms, and what you should do when you receive one.

These forms may look like a ticket or citation, but it has the same effect as if you were handcuffed and taken to jail. Never take these notices lightly, because they are serious. If you have received one, you are facing the exact same potential consequences as if you were arrested.

A notice to appear under Arizona revised statutes

A “Notice to Appear” is defined in Arizona Revised Statute 13-3903. In subsection (C), the statute states:

• In any case in which a person is arrested for an offense that is a misdemeanor or a petty offense, the arresting officer may prepare in quadruplicate a written notice to appear and complaint, containing the name and address of such person, the offense charged, and the time and place where and when such person shall appear in court, provided:
• The time specified in the notice to appear is at least five days after arrest.
• The place specified in the notice shall be the court specified in section 13-3898.
• The arrested person, in order to secure release as provided in this section, shall give his written promise so to appear in court by signing at least one copy of the written notice and complaint prepared by the arresting officer. The officer shall deliver a copy of the notice and complaint to the person promising to appear. Thereupon, the officer shall forthwith release the person arrested from custody.

As the statute reads, an officer who arrests you can issue you the notice to appear. Your promise to show in court on the date specified is serious.

As a practical matter, you should never resolve a criminal case at the hearing without consulting with an experienced criminal defense attorney. There are statutory traps that you may not be aware of, including a suspension of your driver’s license, inability to get your record sealed or expunged, deportation, and many other collateral consequences.

How does a police officer decide whether to make an arrest or to issue a Notice to Appear?

A police officer can only issue a Notice to Appear for a misdemeanor or municipal ordinance violation, not for a felony. For more on this, click here. The officer may issue the Notice to Appear in lieu of arrest unless:

• The officer has any suspicion that you may be wanted in any jurisdiction, or
• It appears that you previously have failed to respond to a notice or a summons or have violated the conditions of any pretrial release program;
• You fail or refuse to sufficiently identify yourself or supply the required information
• You refuse to sign the notice to appear;
• The officer has reason to believe that your continued liberty constitutes an unreasonable risk of bodily injury to the accused or others;
• You have no ties with the jurisdiction reasonably sufficient to assure your appearance or there is a substantial risk that you will refuse to respond to the notice.

Notices to appear are often issued for non-violent offenses where you have no prior record and you live in the county where the offense occurred.

Remember, whether an officer chooses to issue a Notice to Appear is completely discretionary: the officer’s decision can vary from agency to agency and even from police officer to police officer.

Why wouldn't an officer issue me a notice to appear?

There are several reasons that an officer may not issue you a notice to appear. For example, the officer must make an arrest for several crimes, including DUI and domestic battery.

Other reasons that an officer may make a physical arrest are if you are from out of town and have no substantial ties to the area, you aren’t cooperative, or you have a prior record.

Every police department, including departments in Arizona, has its own policies on when officers can and should issue notices to appear. Officers are often given wide discretion whether to make an arrest or whether to issue a notice to appear within statutory limitations.

What are the offenses where police officers do issue Notices to Appear?

The types of offenses that we most often see where Notices to Appear are issued are petit thefts and other minor criminal offenses where the person has no or minimal prior record. Also, in criminal traffic cases, citations are often issued in lieu of arrest for driving with a suspended license and other criminal traffic cases.

What if I don't appear at my court date?

The judge will usually issue a warrant for your arrest. Failing to appear in court can result in a misdemeanor or felony charge. Under Arizona law, the court can not only issue a warrant but can also order forfeiture of any posted bond. At this point, the judge is essentially ordering the police to bring you before the court.

Whether you are at school, work, or a social event, the police can arrest you if they have this warrant. This applies to even minor traffic violations that you chose not to show up for. A failure to appear conviction becomes a part of your criminal record and can show up on background checks for employment or housing searches.

Final Thoughts

Always read the Notice to Appear carefully, and note the time and court location with diligence. The last thing you need is to miss your court date because of poor reading. The consequences after that are steep. If you received a notice to appear, or missed a court date, call me at (480) 545 – 0700, or visit Chuck Franklin Law. You have rights, know them.