California law might allow some defendants to get dismissals for speedy trial rights violation. That can happen if time passed since the arrest and you are prejudiced now to go to trial.
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Under California law, Serna Motion is a motion to withdraw charges because the person’s right to speedy trial was violated.
Serna Motion got it’s name after the case of Joaquin Serna in Superior Court of Los Angeles County in 1985.
Juaquin Mario Serna was charged in 1978 with an embezzlement in the Los Angeles Municipal Court. The owners of a gas station, where he worked as an attendant, based on gallons of fuel sold, determined that Mr. Serna, kept $955.00 from the gasoline that he sold during his shift. Mr. Serna did not come back to the gas station for work after the incident and he was not seen since he completed his shift at the gas station.
He was arrested 4 years and 6 month later and when he was taken to the court, he asked the court to dismiss the criminal case against him based on the violation of his constitutional speedy trial rights. His motion was denied (but reversed and granted by the higher court). Ever since, the criminal justice system in the greater Los Angeles area (and everywhere else in California) refers to a motion to dismiss based on such pre-arraignment speedy trial rights violation, as a “
He was arrested 4 years and 6 month later and when he was taken to the court, he asked the court to dismiss the criminal case against him based on the violation of his constitutional speedy trial rights. His motion was denied (but reversed and granted by the higher court). Ever since, the criminal justice system in the greater Los Angeles area (and everywhere else in California) refers to a motion to dismiss based on such pre-arraignment speedy trial rights violation, as a “Serna Motion“.
The important elements of Mr. Serna’s motion were
(1) he “had done nothing to avoid service” and did not cause any delay in prosecution;
(2) he was available for service at his new Montebello address where the US Mail service had his mail forwarded from his old address;
(3) he did not remember what happened on the day he was accused of embezzlement and a witness from then, who can not be found now, would testify on his behalf.
Thus, Mr. Serna was prejudiced now and if not for the police delay, he would be able to defend himself better. The court took no evidence at the hearing on defendant’s motion and denied Serna’s motion because it lacked specificity as to how Mr. Serna would be using the now unavailable. The trial court held that Mr. Serna did not establish prejudice and denied his motion.
The Supreme Court of California first agreed that Mr. Serna did not demonstrate prejudice. The court implied that he would if he attempted to refresh his recollection by reading the police report. (That means that a defendant’ declaration has to state that he read the police report and it did not (or did) refreshed his recollection. Thus prejudice does not exists when defendant states that he does not remember the events that lead to the charge but it does exist when defendant asserts that he does not remember the events that lead to the charge and trial to refresh his recollection by reading the police report (or/and going to the location of the alleged crime) and it did not help. “…the showing of prejudice must be supported by facts and not conclusions”.
The Court of Appeal however switched to US Constitutional analysis and quickly determined that “…the defendant need not establish actual prejudice prior to a hearing”. The length of delay for Mr. Serna was a factor to decide that he was presumptively prejudiced. Had the arraignment occurred less then one year from the offense/filing of the charges, Mr. Serna would have to prove prejudice (by arguing that he lost memory and despite attempting to refresh it it was to not avail). However, because it occurred after one year, the People have to present evidence as to why the delay was justified.
The right to speedy trial is guaranteed by the U.S. Constitution and California Constitution. Both documents provide constitutional guarantees that guarantee a speedy and public trial.
Most commonly, an attorney can get a Serna motion granted when a case is old and the prosecutor files charges but then fails to arrest the accused or bring him or her to trial for an unreasonable length of time. If the delay took long, it could be a factor in determining prejudice against the defendant, and thus, play into a dismissal.
Serna motion, argued by a skilled attorney, may help you to get a dismissal of misdemeanor charges even such serious as DUI when a lot of time passed between the day of the incident and the arraignment.
You do not need to prove that delay in speedy trial was done on purpose.
Important factors to decide if Serna motion can be won in a defendant’s case.
- The length of the delay for a warrant. Misdemeanor DUI charges must be filed within one year of the arrest date. In most felony cases the state has three years to file charges. Everything else being equal, when your cases are filed on time but you are not notified for several years, you have a stronger Serna motion then you would have if you are not notified for only several weeks.
- The reason for the delay. Is it your or your attorney’s job to point out to the court that there is no good reason why you were not notified for such a long period of time. If there is no legitimate justification for the delay, the court can find prejudice and dismiss your case. Then the Serna Motion will be satisfied and DUI charges dismissed.
- Why do we have a protection of our speedy trial right? Because with time defendant’s opportunity to present a defense decreases.
- At what stage of criminal justice process does the defendant argue the right to a speedy trial.
In conclusion, when police do nothing to find a defendant after a bench warrant is issued, the defendant can ask for a dismissal based on speedy trial rights violation. In fact, many police agencies notify defendants that bench warrants were issued for their arrest.
DUI lawyer Los Angeles can help you analyze if you have a Serna motion. If the People fail to produce evidence of an attempt to serve you and you show prejudice by the delay in prosecution, the chance of granting a motion to dismiss are very high. Call our office (818) 921 7744 to schedule a free consultation to discuss defenses available in your case. We are ready to help you with your DUI and will do so at an affordable rate.
Notes: recently, the People of the State of California argued that the right to a speedy trial attaches at the time the complaint is filed. This is incorrect: Serna v. Superior Court clearly states that this right attaches by the filing of the complaint or arrest, whichever is first.