Posted on July 22, 2016

What is a “Serna Motion”? – Speedy Trial Right Violation

Both the United States and California Constitution guarantee a criminal defendant the right to a “speedy trial” under the Sixth Amendment. Moreover, when a criminal defendant is arraigned on the complaint in a misdemeanor case, they have a right to be brought to trial within a certain time period or the case shall be dismissed. The same is true in all felony cases when a defendant is arraigned on the information.

Most attorney’s confuse a Pre-Arrest Delay Due Process Motion with a Serna motion. Both are similar but different. A Serna motion alleges that there’s been an unreasonable delay that prejudices a criminal defendant’s ability to defend the charge(s) against them, after the filing of a charge sheet. Because material evidence can be lost, destroyed, and witnesses memories fade, the Sixth Amendment recognizes that a defendant may no longer be able to obtain crucial evidence to be used in their favor. Consequently, the remedy is to dismiss the case.

The delay alone is insufficient to earn a dismissal. Instead, the motion requires the court to balance four factors under Barker v. Wingo – e.g., length of the delay, prejudice, defendant’s timely assertions of their speedy trial right, and reason for the delay. It’s common for defense attorney’s to allege a violation under both state and federal constitutions. California recognizes the “presumed” prejudice standard in all misdemeanor cases — where an unreasonable delay exceeding one year presumes the defendant’s ability to defend the charges has been prejudiced.

A typical example is as follows: someone is arrested for DUI and given a court date. The defendant appears in court but charges have not yet been filed against them. They leave with a “proof of appearance.” Months later, the prosecuting agency files DUI charges against the accused but mistakenly forgets to mail out a notice of the court date to the defendant. Consequently, the defendant misses their court date and the judge issues a bench warrant. If one year has passed since the defendant’s arraignment, then a defendant has suffered “presumed prejudice.” If there has not been a one-year delay, then the defendant must prove they suffered actual prejudice – a much higher standard often difficult to show.

A Serna Motion is typical in cases where someone has an outstanding bench warrant for years without their knowledge. If you’ve been arrested for a crime or have an outstanding bench warrant for a charge that occurred a while back, contact a Criminal Defense Attorney at the Law Offices of John D. Rogers for a free consultation.

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