In Washington State, a person commits the crime of “Bail Jumping” if he or she has been released on their personal recognizance, or on bail, and released with the knowledge they are required to return to court for a subsequent hearing. Revised Code of Washington 9A.76.170(1). A person is also guilty of bail jumping if they have knowledge of the requirement to report to a correctional facility to serve a sentence and fail to do so. Id. In layman’s terms, if you are charged with a crime and do not show up to court when you know you are supposed to, or if you do not report to jail (or prison) to serve your sentence when you know you are supposed to, you are guilty of the crime of bail jumping.
The crime of bail jumping can be a felony or a misdemeanor. The class, or level, of the bail jumping charge depends on the offense you are originally charged with and fail to appear for. Bail jumping is:
(a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree;
(b) A class B felony if the person was held for, charged with, or convicted of a class A felony other than murder in the first degree;
(c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony;
(d) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor.
Revised Code of Washington 9A.76.170(3).
Is there any defense to bail jumping? Yes. There is an affirmative defense. An affirmative defense means you admit that you committed the act, but it was legally justified. The defense is laid out in the bail jumping statute. It states:
It is an affirmative defense to a prosecution under this section
that uncontrollable circumstances prevented the person from
appearing or surrendering, and that the person did not contribute
to the creation of such circumstances in reckless disregard of the
requirement to appear or surrender, and that the person appeared
or surrendered as soon as such circumstances ceased to exist.
Revised Code of Washington 9A.76.170(2).
The question is: What is considered “uncontrollable circumstances”? Uncontrollable circumstances mean you have no control over the circumstances that caused you to miss court. An act of God may qualify. For example, if you miss court because a tornado picks up your car (or you) and smashes it (or you) to the ground, then you may have a pretty good defense that you missed your required court date based on uncontrollable circumstances. If you are in the hospital, that may qualify if you can get a note from your doctor that you were hospitalized and were physically unable to go to court. Be careful, however, if you were in the hospital because of something you did, the prosecutor may argue that you “contributed to the creation of such circumstances”. If you are kidnapped and being held hostage, that may also qualify as a defense. Whatever the uncontrollable circumstance that keeps you from making your court date, just make sure that as soon as you are able, you get yourself on the court calendar so that you comply with the requirement of appearing or surrendering as soon as your uncontrollable circumstance, ceases to exist.
There may be other defenses that would fall under the category “burden of proof”. That means the prosecuting authority simply does not have enough evidence to prove each element of the charge beyond a reasonable doubt. For example, they may not have any record that you were given notice of the required court date and therefore, could not prove the element of knowledge.
Generally speaking however, proving a charge of bail jumping is relatively easy for the prosecutors. All they need is 1) a certified copy of the promise to appear to court on the specific day that was signed by the defendant when they received the court date, and 2) a witness, such as a court clerk who can testify that on the date the defendant was required to appear, the court record indicates he or she did not appear.
A copy of the promise to appear signed by the defendant shows knowledge of the requirement to appear. In the county where I practice, the language in the order setting the next mandatory court date states:
The Defendant is ordered to appear at all Fit for Trial Hearings
[a pretrial or status hearing]… The Defendant’s failure to appear
at Trial or at the Fit for Trial or any other hearings set by the
Court may result in issuance of a Bench Warrant, Forfeiture of
Bail and/or criminal prosecution for Bail Jumping pursuant to
Revised Code of Washington 9A.76.170.
A bail jumping charge can be very difficult to defend against. Simply forgetting your court date is not a defense. Division Two of the Washington State Court of Appeals held that based on a plain reading of the statute, “I forgot” is not a defense. The prosecution only has to prove that he received knowledge of the court date, not that he had knowledge of the date everyday thereafter.
For the defense attorney, they must research the law and the records in the case. They must determine whether the hearing was one for which the defendant was actually required to appear. There are different types of hearings and not all require mandatory appearances. They must research and determine if the defendant actually had knowledge of the requirement to appear at the hearing and if so, if there is any actual evidence to prove it. Is there a live witness like a clerk that will be called by the prosecution? Is there a certified copy of a signed promise to appear? Finally, they must investigate the reason for the failure to appear and determine if it was an “uncontrollable circumstance”.
SENTENCES FOR BAIL JUMPING:
As stated above, bail jumping is a misdemeanor if the defendant “was held for, charged with, or convicted of a gross misdemeanor or misdemeanor.” Revised Code of Washington 9A.76.170(3)(d). The maximum penalty for a misdemeanor is 90 days in jail and a $1000 fine. In those cases, the sentencing judge has the authority to sentence the bail jumper anywhere from 0 to 90 days in jail and up to a $1000 fine. In addition, the defendant may be placed on probation and be required to pay probation fees.
If the bail jump offense falls into one of the felony classes, it becomes a little more complicated. In Washington, the sentencing scheme basically works on a grid system. The vertical edge of the grid is the “seriousness level”. The horizontal edge is the “offender score”. There are 16 levels of seriousness in the Washington system. Level sixteen has only one offense: Aggravated First Degree Murder. The only two penalties for that offense are Life in Prison Without the Possibility of Parole and the Death Penalty, regardless of your offender score. The lowest seriousness level is One. That level includes crimes such as Second Degree Theft (theft of property valued between $750 and $5000) and Forgery. The offender score consists of qualifying prior felony convictions. When you determine the seriousness level of the offense and the offender score, you will find the “standard range” sentence the court must impose. There are exceptions to imposing a sentence within the standard range but that is a discussion for another day. Generally, the court must impose a sentence within the standard range. If that happens, no one may appeal that sentence. If the court imposes an “exceptional” sentence outside the standard range, either party may appeal.
Bail Jumping on a charge of First Degree Murder has a seriousness level of six. With an offender score of 0 (zero), the standard range sentence is twelve months plus one day (which means prison) to fourteen months. The offender score only goes to nine on the sentencing grid. Anything higher than nine will fall into the standard range for an offender score of nine. The standard range for Bail Jumping with First Degree Murder with an offender score of nine is 77 to 102 months in prison.
Bail Jumping on an original charge of a Class A felony has a seriousness level of Five. The standard sentencing range begins with 6 to 12 in your local county jail. For an offender score of nine-plus, the range is 72 to 96 months in prison.
Finally, Bail Jumping on a Class B or C felony has a seriousness level of Three. With an offender score of 0, the range is one to three months in jail. The range for an offender score of nine-plus is 51 to 60 months. Sixty months, or five years, is the maximum sentence.
As you can see, the offense of bail jumping is easy to commit. If you simply forget your court date, you can be charged and convicted of bail jumping. You can also see it is easy to prove for the prosecution and difficult to defend against for the defense and the consequences are serious.
So, the word to the wise is DO NOT MISS COURT! The wise will not even be late. If they call your name and you are not there, you risk getting a Failure To Appear, a bench warrant and a charge of bail jumping. Assist in your defense, not your prosecution; do not miss your court date.