California

Criminal Procedure

Criminal Procedure

Rule 4.106 – Failure to appear or failure to pay for a Notice to Appear issued for an infraction offense

(a) Application

This rule applies to infraction offenses for which the defendant has received a written notice to appear and has failed to appear or failed to pay.

(b) Definitions

As used in this rule, “failure to appear” and “failure to pay” mean failure to appear and failure to pay as defined in section 1214.1(a).

(c) Procedure for consideration of good cause for failure to appear or pay

(1) A notice of a civil assessment under section 1214.1(b) must inform the defendant of his or her right to petition that the civil assessment be vacated for good cause and must include information about the process for vacating or reducing the assessment.
(2) When a notice of civil assessment is given, a defendant may, within the time specified in the notice, move by written petition to vacate or reduce the assessment.
(3) When a court imposes a civil assessment for failure to appear or pay, the defendant may petition that the court vacate or reduce the civil assessment without paying any bail, fines, penalties, fees, or assessments.
(4) A petition to vacate an assessment does not stay the operation of any order requiring the payment of bail, fines, penalties, fees, or assessment unless specifically ordered by the court.
(5) The court must vacate the assessment upon a showing of good cause under section 1214.1(b)(1) for failure to appear or failure to pay.
(6) If the defendant does not establish good cause, the court may still exercise its discretion under section 1214.1(a) to reconsider:

(A) Whether a civil assessment should be imposed; and
(B) If so, the amount of the assessment.
(7) In exercising its discretion, the court may consider such factors as a defendant’s due diligence in appearing or paying after notice of the assessment has been given under section 1214.1(b)(1) and the defendant’s financial circumstances.
(d) Procedure for unpaid bail referred to collection as delinquent debt in unadjudicated cases

(1) When a case has not been adjudicated and a court refers it to a comprehensive collection program as provided in section 1463.007(b)(1) as delinquent debt, the defendant may schedule a hearing for adjudication of the underlying charge(s) without payment of the bail amount.
(2) The defendant may request an appearance date to adjudicate the underlying charges by written petition or alternative method provided by the court. Alternatively, the defendant may request or the court may direct a court appearance.
(3) A court may require a deposit of bail before adjudication of the underlying charges if the court finds that the defendant is unlikely to appear as ordered without a deposit of bail and the court expressly states the reasons for the finding. The court must not require payment of the civil assessment before adjudication.
(e) Procedure for failure to pay or make a payment under an installment payment plan

(1) When a defendant fails to pay a fine or make a payment under an installment plan as provided in section 1205 or Vehicle Code sections 40510.5, 42003, or 42007, the court must permit the defendant to appear by written petition to modify the payment terms. Alternatively, the defendant may request or the court may direct a court appearance.
(2) The court must not require payment of bail, fines, penalties, fees, or assessments to consider the petition.
(3) The petition to modify the payment terms does not stay the operation of any order requiring the payment of bail, fines, penalties, fees, or assessments unless specifically ordered by the court.
(4) If the defendant petitions to modify the payment terms based on an inability to pay, the procedures stated in rule 4.335 apply.
(5) If the petition to modify the payment terms is not based on an inability to pay, the court may deny the defendant’s request to modify the payment terms and order no further proceedings if the court determines that:

(A) An unreasonable amount of time has passed; or
(B) The defendant has made an unreasonable number of requests to modify the payment terms.
(f) Procedure after a trial by written declaration in absentia for a traffic infraction

When the court issues a judgment under Vehicle Code section 40903 and a defendant requests a trial de novo within the time permitted, courts may require the defendant to deposit bail.

(g) Procedure for referring a defendant to the Department of Motor Vehicles (DMV) for license suspension for failure to pay a fine

Before a court may notify the DMV under Vehicle Code sections 40509(b) or 40509.5(b) that a defendant has failed to pay a fine or an installment of bail, the court must provide the defendant with notice of and an opportunity to be heard on the inability to pay. This notice may be provided on the notice required in rule 4.107, the civil assessment notice, or any other notice provided to the defendant.

Cal. R. Ct. 4.106

Rule 4.106 adopted effective January 1, 2017

Advisory Committee Comment

Subdivision (a). The rule is intended to apply only to an infraction offense for which the defendant (1) has received a written notice to appear and (2) has failed to appear by the appearance date or an approved extension of that date or has failed to pay as required.

Subdivision (c)(3). Circumstances that indicate good cause may include, but are not limited to, the defendant’s hospitalization, incapacitation, or incarceration; military duty required of the defendant; death or hospitalization of the defendant’s dependent or immediate family member; caregiver responsibility for a sick or disabled dependent or immediate family member of the defendant; or an extraordinary reason, beyond the defendant’s control, that prevented the defendant from making an appearance or payment on or before the date listed on the notice to appear.

Subdivision (e)(1). A court may exercise its discretion to deny a defendant’s request to modify the payment terms. If the court chooses to grant the defendant’s request, the court may modify the payment terms by reducing or suspending the base fine, lowering the payments, converting the remaining balance to community service, or otherwise modifying the payment terms as the court sees fit.

Subdivision (g). A hearing is not required unless requested by the defendant or directed by the court.