“Serna Motion” to Dismiss for Lack of Speedy Prosecution

A Serna motion is a motion to dismiss misdemeanor or felony charges because the defendant was denied the constitutional right to a speedy prosecution or a speedy trial.

Also referred to as speedy trial motions, these petitions are filed by criminal defense attorneys as part of the pretrial process in California criminal law. A successful Serna motion will result in the court dismissing the criminal trials against you.¹

In California state court, defendants have the right to a trial within:

• 45 days of the misdemeanor arraignment (or 30 days if the defendant is in custody); or
• 60 days of the felony arraignment

In federal court, defendants have the right to trial within 70 days of the filing of charges or the defendant’s first appearance, whichever happens later.²

What is my constitutional right to a speedy trial?

The notion of a Serna motion stems from the right to a speedy trial in both:

1. The Sixth Amendment to the United States Constitution;³  and
2. Article I, Section 15, of the California Constitution.⁴

The right to a speedy trial is the right to receive a jury trial reasonably quickly after one of the following milestones in the California criminal court process :

• The filing of a criminal complaint;⁵
• The defendant’s arrest;
• The filing of an indictment; or
• The issuance of a holding order after a preliminary hearing.⁶

Serna motions to dismiss

The right to a speedy trial is in both the US Constitution and the California Constitution. But the analysis of whether the prosecution denied the defendant’s right to a speedy trial is different under the two constitutional sections.⁷

In deciding whether to grant a Serna speedy trial motion (and dismiss the charges against the defendant) under the US Constitution, the judge will balance the following four (4) factors:

1. The length of the delay;
2. The reason for the delay;
3. Defendant’s assertion of the right to a speedy trial; and
4. Prejudice to the defendant from the delay (the court presumes this to exist if the delay is uncommonly long--which means over one (1) year in misdemeanor cases).⁸

In contrast, under the California Constitution, the judge only considers:

1. Actual prejudice to the defendant from the delay; and
2. The prosecution’s justification for the delay.⁹

Below, our California criminal defense attorneys¹⁰ will address the following:

• 1. What is a Serna motion?
• 2. What is my Right to a Speedy Trial under the Federal Constitution?
  • 2.1. When do speedy trial rights start?
  • 2.2. What are speedy trial motions to dismiss under the US Constitution?
• 3. What is my Right to a Speedy Trial under the State Constitution?
  • 3.1. When do speedy trial rights start?
  • 3.2. What are speedy trial motions to dismiss under the California constitution?
• 4. What are the Potential Outcomes of a California Serna Motion?
  • 4.1. Successful Serna motions to dismiss
  • 4.2. Unsuccessful Serna motions to dismiss
• 5. Should you waive your right to a speedy trial?

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

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. The 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 the defendant to trial. If the delay is determined to violate his/her right to a speedy trial, then the criminal charges must be dismissed. ¹¹

Serna motions are named after the 1985 California Supreme Court case of Serna v. Superior Court. The following example summarizes the facts of that case:

Example:

In September 1978, Joaquin faces accusations of misdemeanor embezzlement for allegedly stealing funds from a gas station where he is working at the time. The D.A. files a criminal complaint against him at that time--but Joaquin does not know about this.

Eventually law enforcement arrests Joaquin for this crime in February 1983--almost 4 and a half years after the complaint issues.

The court will presume that the delay harmed Joaquin’s ability to defend himself by making it harder for him to recall the events from when the alleged crime occurred--and to produce witnesses who can do so. Joaquin committed no misconduct that led to the delay. The D.A. failed to use its legal resources to track down and arrest Joaquin earlier.

So if the prosecution cannot show any good reason for the lack of speedy prosecution, the court should dismiss charges against Joaquin in response to a Serna motion.¹²

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.

A Serna motion can be based on either or both of:

1. The Sixth Amendment to the United States Constitution;¹³ and/or
2. Article I, Section 15, of the California Constitution.¹⁴

Because the law surrounding these two constitutional sections is different, we will discuss each separately below.

2. What is my Right to a Speedy Trial under the Federal Constitution?

The law on the right to a speedy trial under the federal (US) Constitution is as follows:

2.1. When do speedy trial rights start?

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;¹⁵ or
2. The defendant’s arrest--but only if the arrest is followed by some kind of actual or continuing restraint (like a California bail requirement or travel restrictions).¹⁶

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

1. The defendant is arrested;
2. A holding order is issued for the defendant following a preliminary hearing; or
3. An indictment or information is filed. ¹⁷

A felony complaint does not activate the right to a speedy trial under the US Constitution.¹⁸

Example:

Timothy is accused of raping and murdering a woman in Orange County in December of 1989. Weeks after that crime, police officers arrest him pursuant to an arrest warrant, and the court charges him with several other crimes in the state of Missouri.

In February of 1990, the Orange County District Attorney’s office files a complaint accusing Timothy of the felony crimes of rape and murder. But Timothy is in custody in Missouri, where the court tries and convicts him of other crimes.

Finally, in late 1991, the Orange County and Missouri authorities transfer Timothy to custody in California.

The court holds a preliminary hearing on the rape and murder charges, and this results in the filing of an information in February of 1992. Timothy’s trial begins shortly after that.

Two years elapsed between the initial complaint against Timothy and his trial. But a complaint does not trigger speedy trial rights in felony cases--only an indictment or information will do so.

And because Timothy’s information issued right before his trial, he does not have valid grounds for a successful Serna motion that relies on the federal constitutional right to a speedy trial. ¹⁹

2.2. What are 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. ²⁰

Prosecution’s reasons for the delay

The reasons why the prosecution delayed bringing your case to trial will be an important factor in the federal Serna motion analysis.

If the government deliberately delayed the trial to make it more difficult for you to mount a defense, then that is a substantial factor supporting the finding that the prosecution violated your rights.²¹ (This kind of behavior can amount to a form of prosecutorial misconduct.)

More “neutral” excuses such as negligence and overcrowded courts still weigh against the government – but not as strongly. And valid reasons such as a witness being unavailable will count in the prosecution’s favor. ²²

Example:

Charlene is pulled over by Mike, a highway patrol officer. Mike notices that she is acting intoxicated and administers a DUI breath test. It shows that her blood alcohol level is well above the legal limit.

A complaint is filed against Charlene charging her with misdemeanor California DUI.

Mike is a member of the Army Reserve. Not long after the court charges Charlene, Mike receives a call to serve in Iraq and goes overseas. Because he will be a key witness in Charlene’s case, the prosecution decides to put off her trial until he comes back. Mike is absent for 13 months.

Charlene did experience a serious delay between the filing of her misdemeanor complaint and her trial. However, the prosecution had a good reason for the delay--Mike’s absence--which means that this factor in the federal speedy trial test will probably count in the prosecution’s favor.

Prejudice to the defendant

The degree of “prejudice” (that is, harm) to the defendant from the delay is another major factor that helps determine whether a speedy trial motion under the US Constitution will be successful.

Prejudice to the defendant can take the form of:

• Long periods of pretrial incarceration;
• Anxiety and concern over the pending criminal charges; and/or
• Impairment of his/her ability to defend against the charges--such as the death or disappearance of witnesses or the weakening of witnesses’ memories of what occurred.²³

You and your attorney can present evidence along with your Serna motion to show that any or all of these forms of prejudice exist.

Remember that in misdemeanor cases, the filing of a complaint is enough to trigger the speedy trial clock.

Also, the judge will presume that prejudice exists (even without any evidence thereof) if the delay to trial was “uncommonly long.”²⁴

In misdemeanor cases, any delay of more than one (1) year is long enough to create a presumption of prejudice.²⁵

Example:

Let’s return to Charlene from our previous example.

During the 13 months between the filing of her complaint and her trial, she suffers severe anxiety over the potential consequences if she is convicted. She also finds that her memory of the night she was arrested is getting weaker.

Her defense plan includes calling as witnesses two friends who were with her on the night when she allegedly drove drunk. But one of these friends moves out of the country and can no longer testify. The other admits that he is having a hard time remembering what happened.

Plus, because the delay exceeds a year in a misdemeanor case, the judge reviewing Charlene’s speedy trial motion under federal law will presume that she was prejudiced by the delay even without evidence of these specific harms.

As a result, prejudice to the defendant will likely be a powerful factor in support of a federal Serna motion if Charlene and her attorney choose to file one.

3. What is my Right to a Speedy Trial under the State Constitution?

According to Bakersfield criminal defense attorney Neil Shouse²⁶:

“If your criminal defense attorney is filing a Serna motion on your behalf, s/he will probably want to make two different speedy trial arguments: one based on the US Constitution, and one based on the California Constitution That is because federal and California speedy trial laws are slightly different from each other, and each has potential advantages that the other does not. “

The fast and speedy trial law under California’s state constitution is as follows:

3.1. When do speedy trial rights start?

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).²⁷

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.²⁸

Example:

Earlier in this article, we presented the example of Timothy. A felony complaint was filed against Timothy accusing him of rape and murder in 1990. But he was not indicted or brought to trial until 2 years later.

Under federal law on fast and speedy trials, Timothy could not bring a successful Serna motion because his speedy trial rights did not begin until the indictment was issued. But under the state constitutional law on fast and speedy trials, Timothy’s speedy trial right began when the felony complaint was filed.

Because there was a two-year delay between the complaint and his trial, he may be able to claim successfully in a Serna motion that his right to a speedy trial under the California Constitution was violated.

3.2. What are 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.²⁹

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.³⁰ 

Example:

Earlier in this article, we summarized the facts of the case of Serna v. Superior Court, for which Serna motions were named.

Joaquin, the defendant in that case, faces charges of embezzlement through a criminal complaint in September 1978. But he does not face arrest and trial until 1983.

Under federal speedy trial law, the court presumes Joaquin sustained harmed by that long delay.

But under state fast and speedy trial law, there is no such presumption. Joaquin needs to show that there was concrete harm to him from the delay--for example, witnesses disappearing or forgetting what happened on the day of the alleged crime.

Without an affirmative showing of prejudice Joaquin is unlikely to succeed on his Serna motion under the California Constitution.³¹

4. What are the Potential Outcomes of a California Serna Motion?

4.1. Successful Serna motions to dismiss

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.³²

In other words, a successful speedy trial motion will clear you of the current criminal charge--the best of all possible outcomes!

4.2. Unsuccessful Serna motions to dismiss

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. Defendants should consult with their attorneys about the pros and cons about waiving their right to a speedy trial.

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

Call our law firm for help …

For questions about California Serna motions / speedy trial motions to dismiss, or to discuss your criminal case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group. Our criminal defense lawyers offer legal advice 24/7.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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

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