“Serna Motion” to Dismiss for Lack of Speedy Prosecution

A Serna motion is a pretrial motion to dismiss criminal charges because you were denied the constitutional right to a speedy prosecution or a speedy trial. Serna motions also go by the term speedy trial motions.

Here are five key things to know:

1. In California misdemeanor cases, you have the right to a trial within 45 days of the misdemeanor arraignment (or within 30 days if you are in custody).
2. In California felony cases, you have the right to a trial within 60 days of the felony arraignment.
3. In federal cases, you have the right to trial within 70 days of the filing of charges or your first appearance, whichever happens later.¹
4. A successful Serna motion will result in the court dismissing the criminal charges against you.²
5. If you lose the Serna motion, you can still appeal.

Below, our California criminal defense attorneys will address the following:

• 1. What is a Serna motion?
• 2. What is my right to a speedy trial under the federal Constitution?
• 3. What is my right to a speedy trial under the state constitution?
• 4. What are the potential outcomes of a California Serna Motion?
• 5. Should you waive your right to a speedy trial?

The notion of a Serna motion stems from the right to a speedy trial that is in both the United States Constitution and the California Constitution.

1. What is a Serna motion?

A California Serna motion (also known as a “speedy trial motion” or a “speedy trial demand”) is a kind of pretrial motion. This means it is a motion that you and your criminal defense attorney can file before your actual trial begins.

Serna motions are filed in cases where there has been an unusual delay in bringing you to trial. If the delay is determined to violate your right to a speedy trial, then the criminal charges must be dismissed.³

After your defense attorney files a Serna motion on your behalf, the next step will be for the judge in your case to hold a hearing at which both sides will present evidence relevant to the speedy trial demand.

The judge will then decide – prior to your trial – whether to grant the motion and dismiss the charges.

2. What is my right to a speedy trial under the federal Constitution?

For purposes of Serna motions that rely on the Sixth Amendment to the US Constitution, the clock starts running as soon as either of the following occurs in a misdemeanor case:

1. The filing of a complaint;⁴ or
2. Your arrest–but only if the arrest is followed by some kind of actual or continuing restraint (like a California bail requirement or travel restrictions).⁵

But in felony cases, the Serna clock starts running when one of the following occurs:

1. You are arrested;
2. A holding order is issued for you following a preliminary hearing; or
3. An indictment or information is filed.⁶

A felony complaint does not activate the right to a speedy trial under the US Constitution.⁷

The Sixth Amendment grants the right to a speedy criminal trial. In misdemeanor cases, the right attaches after the filing of a criminal complaint.

2.1. Speedy trial motions to dismiss under the US Constitution

When you file a Serna/speedy trial motion, the judge will determine whether the delay in bringing you to trial is unreasonable under the Sixth Amendment to the US Constitution.

In making this determination, the judge will weigh the following four (4) factors:

• The length of the delay in bringing you to trial;
• The prosecution’s reasons for the delay;
• Your assertion of the right (that is, whether you made efforts to speed up the process during the delay); and
• Prejudice to your interests from the delay.⁸

Under California law, a complaint activates your speedy trial rights for either misdemeanors or felonies. An unjustified delay or a trial court date could lead to the case being dismissed.

3. What is my right to a speedy trial under the state constitution?

Under Article I, Section 15, of the California Constitution, your right to a speedy trial begins at the earlier of:

1. The date a complaint or any other charging document is filed against you; or
2. The date you are arrested (if that arrest is followed by actual or continuing restraint of some kind).⁹

This is one major difference between the federal and state laws on Serna motions. Under federal law, a felony complaint does not start the speedy trial clock running–only an indictment or information can do that.

But under state law, a complaint activates your speedy trial rights for either misdemeanors or felonies.¹⁰

3.1. Speedy trial motions to dismiss under the California Constitution

For Serna motions to dismiss under the California Constitution, the judge will consider only two (2) factors in deciding whether the state violated your speedy trial rights:

1. The justification for the delay; and
2. Prejudice to you resulting from the delay.¹¹

Unlike with the federal standard, the court will not presume prejudice if there is an unusually long delay. If you cannot show that there was some harm to you from the delay, then you are unlikely to win a dismissal through a Serna motion under the state constitution.¹²

4. What are the potential outcomes of a California Serna Motion?

A Serna (speedy trial) motion is a motion to dismiss the charges. If the prosecution has violated your speedy trial rights, then the prosecution should drop all charges against you – the best of all possible outcomes!¹³

If your Serna motion is unsuccessful initially, then you are not out of luck. You may use the California criminal appeals process to appeal this decision.

If the court denies your Serna motion (and the court convicts you of the charges) you can appeal your conviction. You can argue that the court was wrong to deny the Serna motion because in fact the state violated your constitutional right to a speedy trial.

5. Should you waive your right to a speedy trial?

It depends on the case. You should consult with your attorneys about the pros and cons of waiving their right to a speedy trial.

Speedy trials are beneficial because evidence and memories are fresh. Plus if you are in custody, you can get a quicker release if you have a speedy trial that results in an acquittal. Though in some cases, it is beneficial to take extra time to gather favorable evidence and craft a strong defense.

See our related article on the statute of limitations in California criminal cases.