Serna Motion to Dismiss for Speedy Trial Violation

One of the ways to have a DUI dismissed in court, or to dismiss any criminal case, is to challenge the timing of the prosecution. A Serna Motion to Dismiss for Speedy Trial Violation is one of several motions that a DUI defense attorney can utilize to fight a DUI case and end up with a dismissal of the entire case.

It is often hard to believe that the person charged not showing up in court can help the case result in a dismissal, but that can happen, and the court can and will (and must) dismiss a case when there is a violation of the defendant’s rights.

The Law: Serna Motion to Dismiss for Speedy Trial Violation

A Serna motion is named after the case which set the standard to be used in either misdemeanor or felony prosecutions, Serna v. Superior Court, supra, 40 Cal.3d at page 249, 219 Cal. Rptr. 420, 707 P.2d 793.

Setting aside the technicalities of the law, the motion is fairly simple. It relies on three principles:

Principle one: Every law has a statute of limitations, or a time within which the prosecution has to bring a case to trial. For most misdemeanors, Penal Code section 1382 sets a one year time limit, and for the majority of felonies, that time period is three years. Prosecutors have to bring cases to trial within that period of time, or have the case be dismissed.

Principle two: A Serna motion alleges that there was a delay in bringing the case to trial. The delay cannot be the defendant’s fault.

“Delays in arrest that are necessary for law enforcement purposes, i.e., those occasioned by inability to locate the accused or witnesses, or to conduct further investigation and gather evidence, do not violate the right to speedy trial unless the prosecution is delayed unreasonably. To determine if the delay is unreasonable and the right to speedy trial violated, ‘the prejudicial effect of the delay on [the accused] must be weighed against any justification for the delay..”

Principle three: The delay has to result in actual prejudice. In other words, it would affect the right to a fair trial.

Prejudice will be presumed with a delay of over one year in a misdemeanor prosecution. (Serna. at p. 254, 219 Cal. Rptr. 420, 707 P.2d 793), this does not preclude the prosecution from presenting evidence to rebut the presumption. (Id. at p. 264, 219 Cal. Rptr. 420, 707 P.2d 793; People v. Egbert, supra, 59 Cal.App.4th at p. 510, 68 Cal. Rptr. 2d 913.)

If the motion is denied, and the reviewing court deems the denial was in error, the error is inherently prejudicial because a grant of the motion would have precluded further prosecution in most circumstances. (See Pen. Code, § 1387 for the exceptions; People v. Egbert, supra, 59 Cal.App.4th at p. 514, 68 Cal. Rptr. 2d 913.)

Serna motion cite: http://scocal.stanford.edu/opinion/serna-v-superior-court-28419

Case Study: Orange County Hit and Run Dismissed

The format of Serna Motion to Dismiss for Speedy Trial Violation motions

A criminal motion asks the court to be instructed, and decide, some important issue in the case. If the court denies the motion, or is unwilling to become involved, then an appeals court writ (appellate motion) can be an alternate remedy, and perhaps even the preferred one:

“[A] petition for a pretrial writ is the preferred method to address a speedy trial claim. [Citation.]” (Avila v. Municipal Court,, 148 Cal.App.3d at p. 811, 196 Cal.Rptr. 286.)

The reason for this is explained in Serna v. Superior Court, supra, 40 Cal.3d at page 264, 219 Cal.Rptr. 420, 707 P.2d 793:

“Extraordinary writ review of a misdemeanor defendant’s motion to dismiss made on speedy trial grounds is ․ necessary because appeal does not afford an adequate remedy for redress of these violations. Relief should be granted whenever the trial court record establishes a violation of the right to speedy trial guaranteed by the Sixth Amendment. The defendant will thus be accorded some redress for the violation of his interests as he will not have to undergo the strain and expense of trial; the public fiscal will be spared the expense of a futile trial and consequent appeal; and an effective means by which to enforce the right to speedy trial will exist.”

The effect of winning a Serna Motion to Dismiss for Speedy Trial Violation

A Serna Motion to Dismiss for Speedy Trial Violation has been used by our firm to dismiss a criminal case. When there is a delay beyond one year in bringing a case, it can be a powerful means to dismiss the entire case, including all criminal charges.

Contact our firm

Contact our firm today to find out more about Serna motions, and whether or not a Serna motion can help you in your case, to get all charges dismissed.