Explanation of a California Serna Motion
Posted on March 10, 2017
When there’s been a violation of an accused right to a speedy trial, the often motion litigated is a motion to dismiss for a violation of the defendant’s Sixth Amendment Speedy Trial Right – e.g., “Serna Motion”. In other words, if there’s been an unreasonable and unjustifiable delay in bringing an accused to court after the arraignment, then the appropriate remedy is to dismiss the complaint or information.
To succeed on a Serna motion, the motion must include an analysis of 1) the length of the delay; 2) reason for the delay; 3) assertion of the right; and 4) prejudice. These four factors are known as the Wingo factors from the United States Supreme Court case of Barker v. Wingo. Serna motions are applicable in all criminal cases including, felonies, misdemeanors, and even traffic infractions. However, Serna is technically applicable to misdemeanors or infractions, and in felony cases, the motion is a Sixth Amendment speedy trial violation motion to dismiss.
Prior to ruling on a motion to dismiss under Serna, a court will conduct a balancing test to determine whether or not to dismiss some or all the charges. In most cases, the District Attorney concedes to a delay but disputes either the reason for the delay or the level of prejudice, if any, the accused has suffered.
- Length of the Delay
Under the first factor, the court will determine how long the delay has been since the defendant’s arraignment or when the defendant first became an “accused” triggering the speedy trial right. The length of the delay is usually the triggering mechanism that requires the Court to balance it with other factors if the delay exceeds one year.
- Reason for the Delay
Under the second factor, the court will examine the reason for the delay. Typically, a delay exists when a defendant fails to appear in court on the date of their arraignment. The analysis focuses on what efforts the prosecution or law enforcement made to alert the defendant of the pending charge(s). In many instances, the prosecutor will argue lack of resources or the defendant’s deliberate means to avoid capture or court. Just because a defendant resides out of state or out of the United States does not change the analysis. The analysis focuses on whether the defendant actively evaded law enforcement or capture.
- The Assertion of the Right
This factor requires the defendant to assert their right Sixth Amendment right. Namely, if the defendant was aware of their pending case, and deliberately avoided coming to court, then the defendant did not assert their speedy trial right.
The prejudice prong is probably the most important factor the court considers. In any misdemeanor or infraction case, if one (1) year has elapsed since the defendant’s arraignment, then the law recognizes the presumption of prejudice. However, if there’s been less than one year, then there is no presumption of prejudice, and the burden is on the defendant to prove actual prejudice. For instance, witnesses ’ memories fade, material witnesses are no longer alive or unavailable, evidence has dissipated or lost or destroyed, etc.
Contact an Experienced Criminal Defense Lawyer
Filing a Serna motion is usually the first thought when an attorney is retained to recall an outstanding bench warrant. For more information or to schedule a free confidential consultation, contact an Orange County Criminal Defense Attorney.