Any experienced attorney is familiar with the untenable situation caused by an open arrest warrant. If a person has an open arrest warrant, it’s important to address the situation as fast as possible. Regardless of whether the arrest warrant was issued following a grand jury indictment, or a bench warrant was issued because you missed a court appearance, you must make a decision: Face arrest by law enforcement or surrender voluntarily.
If you need to make this decision, you should seriously consider talking to an attorney before you go through the surrender process. In New York, the process for arrest and booking is very different when a person has retained counsel. When you don’t have a retained attorney, law enforcement officials are trained to goad you into making statements without adequate representation. But when you have an attorney, the law enforcement officials are required to respect counsel retention. They will not be allowed to talk to you outside the presence of your attorney, with the exception of when they request pedigree information.
Two types of warrants exist in New York: bench warrants and arrest warrants. Each type has the same end result — the immediate arrest of the named individual — but the types are also issued in different circumstances.
An arrest warrant is a warrant issued by a judge. This calls for the arrest of an individual following the filing of a criminal complaint. In most cases, an arrest warrant will be issued when the probable cause has been judged to exist by a grand jury. This generally happens through a felony indictment. Indictments state that there is probable cause for arrest, but an indictment is not the same as a conviction.
When a grand jury hasn’t issued an indictment, the judge in charge of the warrant is required to review the evidence presented by the state. They will then determine whether there is reasonable or probable cause for the individual to be arrested.
Theoretically, arrest warrants can be issued for both felony and misdemeanor offenses. However, arrest warrants are usually issued for misdemeanors only when the court believes that a ticketed summons for your appearance in court will not ensure that you appear at your arraignment.
For this reason, arrest warrants tend to be issued for class D felonies and above. These charges present a significant risk of flight because of the severity of their penalties.
Arrest warrants and bench warrants are similar in that they can result in an at-home arrest. However, arrest warrants tend to be messier in their execution than bench warrants. When people have a recognizable name or public persona, the media might be alerted of the warrant. It’s lawful for law enforcement to break into your home if they believe that you are a flight risk, or that you threaten potential evidence.
Bench warrants are issued by the court in the state of New York. These warrants authorize law enforcement to arrest an individual because of the individual’s failure to respond to a court order or appear in court. Bench warrants direct law enforcement officers to bring an individual to court for a purpose unrelated to arraignment. Most commonly, bench warrants are issued in the following circumstances:
- The defendant fails to make a court appearance on their pending criminal case after they have been arraigned
- The defendant fails to report for jury duty
- The defendant fails to respond to or appear in response to a court ordered or grand jury subpoena
Bench warrants are executed differently from arrest warrants. When a law enforcement official is tasked with bringing an individual to court due to a bench warrant, they are able to enter any places that the defendant might be reasonably believed to be inside. That said, they cannot enter the home of any third party not involved in the warrant.
If an arrest is not done at home, a bench warrant might be triggered when a state police officer does a background check. It would also be triggered by the federal customs agents at the airport. If you’re arrested, the judge is the only one who can close the warrant. Typically, they will do this after you appear in court.