March 26, 1981


TO: All Magistrates and Municipal Judges
FROM: M. Eve Moredock, Staff Attorney
RE: Charging of Violation of Section 56-25-40(b); Failure to Appear in Response to a Traffic Citation

It appears that there may be some misunderstanding regarding the use of the failure to appear offense provided in the Non-Resident Violator Compact. Section 56-25-40(b) provides that:

"Any person who willfully fails to appear before the court as required by a uniform traffic citation without having posted such bond as may be required by the court or been granted a continuance by the court shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than two hundred dollars or imprisoned not more than thirty days."

This is a separate and distinct criminal offense from the traffic violation for which the defendant failed to appear. To properly charge the defendant, a numbered arrest warrant must be issued. If the warrant cannot be served due to the fact that the defendant cannot be located, then a trial could not be held, and a fine could not be imposed.

The provision of an offense of failure to appear, though included within the same legislation which adopted the Non-Resident Violator Compact, creates a tool for the court which is totally separated from the procedures under the NRVC. To properly charge this offense, a numbered arrest warrant must be issued. A fine imposed after trial on such a charge, should never appear on a traffic ticket or on the NRVC form (Form DL-53).

After a trial on the traffic offense, the fine imposed by the court should appear on the traffic ticket on the lower left side, in the block marked "Fine." Should the defendant fail to appear for trial and the offense be one which is enforceable under the NRVC, the NRVC form should be filled out, and the block marked "Fine and Costs" should reflect the same fine that appears on the ticket. There are no extra "costs" which can be added once the NRVC procedures are put into effect.

In addition, an opinion of the Attorney General was obtained on this subject. In summary, the Opinion confirms that the offense of failure to appear in response to an uniform traffic citation pursuant to § 58-25-40(b) is a separate and distinct criminal offense. This separate criminal offense must be charged by means of a numbered arrest warrant, and a separate criminal proceeding must be held. If you have any questions about this matter please do not hesitate to call this office.