Don’t get your body attached
From the point of view of the hardworking officer who makes many arrests and writes more than his or her share of tickets, court appearances in a time of no cash overtime can be burdensome. Hard cash goes out for gas and transportation with little visible benefit, while days off and vacations are brutalized with no apparent reward.
But there is a different point of view that can wreak havoc in an officer’s life: the judge’s. The judge’s point of view comes from an elevated position on the bench, surveying a calendar of dozens of cases that he or she is trying to move through the system. From that point of view, a case that cannot move forward because an officer — who’s been properly served — isn’t there becomes more than an irritation. It can rise to the level of a vendetta.
Any officer who wishes to challenge the judge’s way of looking at things is bringing a knife to a gun fight. The judge has all of the power. And even if the officer survives the judicial conflict, the Department is waiting in the wings with its own hammer.
I bring this up because in the fourth quarter of 2011, the number of failure-toappear- in-court personnel complaints is more than four times the number for the fourth quarter of 2010. Department managers are noticing and polishing their hammers.
A failure to appear in a court after being properly subpoenaed is grounds for criminal contempt [Penal code 166 (a) (4)]. The result of failing to appear can be a body attachment, which is an order to bring you before the court. If the court is not in session, a cell can be your waiting room while you await the judge’s pleasure.
Fortunately, most of the body attachments that are issued by a court are held as a courtesy to give the Department the chance to locate the officer, but this is not required and not always followed. When it is, a frantic search is done by Department supervision to locate the officer, and you can be sure that there will be personnel complaint consequences if the officer’s reasons for failing to appear are not rock solid.
In those cases where the body attachment is not withheld by the court, an officer is actually arrested and brought before the court. A contempt hearing is eventually held. This is another good reason to belong to the League’s Legal Plan. Contempt hearing representation and an attorney response to the court, if you are brought before the judge, are part of the plan.
But contempt hearings are to be avoided at all costs. The possibilities are onerous. Jail time and/or a fine are among the judge’s options. If you are served, the only options you want to be involved in are the options that result in the subpoena being released. The type of hearing you are being subpoenaed to has a lot to do with how you can escape being in contempt for not appearing.
If it is a traffic case that does not involve a juvenile or a City attorney subpoena, an officer may request to be excused by completing a Request to be Excused from Traffic Court Appearance, Form 04.70.00, and submitting it to their commanding officer for approval. (See Manual section 3/210.28.)
A misdemeanor case is more complicated. It requires a Declaration for Continuance, Form 15.51.00, containing all facts to which you can testify, general information as to your address where you will be and dates of absence. This form goes to the watch commander for approval and then to the deputy City attorney in charge of the trial.
For felony preliminary hearings and trials, you are at the mercy of the deputy district attorney handling the criminal case. You must contact the deputy district attorney and obtain his or her permission to not appear, and then submit to the watch commander for approval a 15.7 containing the case information and the name of the district attorney approving the release. Copies go to the investigating officer on the case and the subpoena control officer. (See Manual section 3/310.25 and following for these procedures.)
Once you are under the power of a properly served subpoena, you are under the power of the court. Be there or be released from the subpoena. Those are the only options. And by the way, calling in sick is viewed with suspicion and may result in you being required to get a doctor’s note for the Department.
If you find that you are the subject of a body attachment or bench warrant, immediately call the League for assistance. The Legal Plan will provide you with an attorney to deal with the judicial system. Then stand by for the Department ram. Legal Plan members qualify for an attorney to assist them with this also.
Hear warning bells. Failure to appear in court is currently perceived by the Department to be a problem because of the fourfold increase in personnel complaints. Department management will be searching for officers to be made into examples. Don’t be one.
Be legally careful out there.
