Bench and Arrest Warrant in California

California Penal Codes 166, 978.5

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Bench warrants and arrest warrants are both court orders that a court issues for the arrest of an individual. While bench warrants and arrest warrants have similarities, they serve distinct functions. If a warrant is not properly acquired, a criminal defense lawyer can attempt to recall or quash the warrant.

Arrest Warrant

An arrest warrant is issued when law enforcement or a grand jury1 believes that probable cause2 exists that the suspect has committed a crime. This legal document gives police the legal right to arrest and detain a suspect. The presence of an arrest warrant demonstrates that there has been some criminal case investigation into a suspect. This investigation may include talking to potential witnesses, getting a sworn statement from the victim and the collection of evidence. If the investigation results in probable cause3 , law enforcement can request a formal arrest warrant.

Legal Requirements of an Arrest Warrant

For law enforcement to secure a valid arrest warrant, certain legal requirements must be met following arrest warrant process. A valid arrest warrant consists of the following:

  • The warrant contains the justification for probable cause
  • A detached and neutral judge or grand jury issues the warrant
  • The warrant describes the actual person to be arrested
  • Police affidavits are devoid of reckless falsehoods and support the warrant

These legal requirements are further specified as follows:

Probable Cause

Probable cause can be supported in a number of ways. In some situations, law enforcement may have personally witnessed criminal activity. In other situations, witness statements may support the arrest. If the arrest warrant is based on law enforcement observations, the officer’s affidavit must state that the law enforcement officer knows the facts based on personal observation and that these facts suggest that the suspect is committing or has committed a crime. If the arrest warrant is supported by witness statements, the affidavit must contain information about why the witness is a credible person and that he or she had a strong basis of knowledge about the asserted facts. The judge takes all of the information into consideration when determining whether to issue the arrest warrant.

Detached and Neutral Judge

The individual issuing the arrest warrant must be a judge or magistrate (or the grand jury) and must not be associated with the individual for whom the arrest warrant is issued. Other government officials can ask for an arrest warrant other than law enforcement, including the District Attorney.

Description of Suspect

The arrest warrant must ”particularly describe”4 the person for whom the arrest warrant is issued.

Police Affidavits

An arrest warrant can be invalidated if the police affidavit to support the warrant is based on false statements or reckless statements without regard to the truth of them. The defendant must prove this information in order for the arrest warrant to be invalidated.

Exceptions to Arrest Warrants

There are some situations in which law enforcement does not need to comply with the requirement to acquire an arrest warrant. For example, if law enforcement has probable cause and has observed a felony, a warrant is not typically necessary. In emergency situations, there may not be a requirement for an arrest warrant. However, absent an emergency, a person cannot be arrested in his or her home without an arrest warrant.

After Acquiring the Arrest Warrant

When an arrest warrant is issued, law enforcement has the authority to apprehend the individual at their residence, workplace, or any other location. Following the arrest, the suspect is processed and possibly detained. Shortly thereafter, the individual might appear before a judge for arraignment. If you find yourself or someone you know in this situation, it's crucial to seek legal assistance promptly. Contacting an experienced criminal defense attorney can provide the necessary legal support and representation during these critical moments.

Bench Warrants

Bench warrants5 are more common than arrest warrants in California. They serve a much different purpose than arrest warrants. This type of warrant is often issued when someone fails to appear for a required court hearing or to take action demanded by the court. It gets its name because it is issued from the bench, meaning the judge. It is not issued due to any suspected criminal activity.

Reasons Why Bench Warrants Are Issued

Some of the most common reasons why bench warrants are issued are:

Failure to Appear

A bench warrant may be issued if the individual for whom the warrant issues fails to appear under the following circumstances:

  • Appear in court when required;
  • Attend a progress report hearing on his or her probation;
  • Show proof of enrollment or completion of a court-ordered program; or
  • Appear at a trial when the individual is a defendant, witness, juror or other necessary party

Individuals who are convicted for failing to appear in court may be subject to significant consequences.6 These consequences can result even if the defendant is found not guilty on the original charges that he or she was facing.

Failure to Pay Fines or Restitution

Another common reason why a bench warrant may be issued is if a defendant fails to pay court ordered fines or restitution. Willful failure to pay means that a person has the means to pay but has failed to pay. The willful failure to pay fines or restitution can result in a misdemeanor charge with a possible sentence of up to one year in county jail.7 

Probation Violation

A judge may issue a bench warrant when a criminal defendant is on probation and has not complied with the terms of probation.8 Probation violations may occur when a defendant has:

  • Failed to attend a court-ordered program such as domestic violence classes or DUI school
  • Failed to complete community service
  • Failed to provide a sample for mandatory alcohol or drug testing
  • Testing positive for drugs or alcohol
  • Participating in criminal activity

Contempt of Court

A bench warrant can also be issued if a defendant is found guilty of contempt of court. In this situation, a judge can issue this warrant in a civil case where no criminal activity is suspected. A bench warrant for this purpose may be based on the defendant’s failure to:

  • Pay court ordered child or spousal support;
  • Vacate property
  • Obey another order of the court

After Acquiring a Bench Warrant

After law enforcement secures a bench warrant, an officer can immediately arrest the defendant.

If a person is subject to a bench warrant or arrest warrant in California, it is important for him or her to immediately seek legal assistance. There may be ways that a criminal defense lawyer can minimize the damage and protect the legal rights of the accused.


1  California Penal Code Section 888 – “A grand jury is a body of . . . citizens of the county . . . to inquire of public offenses committed or triable within the county.”

2  Fourth Amendment of the United States Constitution – “The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

3  People v. Price (1991) 1 Cal. 4th 324, 410 – Probable cause for an arrest only exists when the facts known to the arresting officer “would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”

4  Fourth Amendment to the U.S. Constitution – see above.

5  See California Penal Code 166 and 978.5.

6  California Penal Code Section 853.7 – Willful failure to appear in court after being given a written promise to appear is considered a misdemeanor offense with a potential punishment of one year in county jail and a maximum fine of $1,000. California Penal Code Section 1320(b) and Section 1320.5 – A defendant who has been released pending a felony case and willfully fails to appear in court within 14 days of a scheduled court date is considered a felony offense with a maximum penalty of up to three years in county jail and a fine up to $10,000. See also California Penal Code Section 1320(a) – A defendant who willfully fails to appear in court within 14 days of a scheduled court date on a pending misdemeanor case can be found guilty of evading the process of the court, which carries a maximum penalty of one year in county jail and a maximum fine of $1,000.

7  California Penal Code Section 1203.04.

8  See California Penal Code Section 1203.2 – A judge has the discretion to order the arrest of any individual on probation even if he or she does not have a probation officer if the defendant has violated a term of probation.