Posted on March 10, 2017

Explanation of a California Serna Motion

When there’s been a violation to an accused right to a speedy trial, the often motion litigated is a motion to dismiss – 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 be filed at the arraignment or close thereto.  Additionally, the motion must include a violation of the defendant’s California state and federal speedy trial right.  Moreover, 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 State Supreme Court case of Barker v. Wingo.  Serna motion are applicable in all criminal cases including, felonies, misdemeanor, and even traffic infractions.

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 or prejudice, if any, the accused has suffered.

  1. Length of the Delay

Under the first factor, the court will determine how long the delay has been since the defendant’s arraignment.  The longer the delay, then the court is more prone to balance this factor in the accused favor versus a short delay (weeks or a few months).  Sometimes, a delay could be years.

  1. Reason for the Delay

Under the second Wingo factor, the court will examine the reason for the delay in the first place.  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 has done to explain the delay.  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.

  1. Assertion of the Right

This factor requires the defendant to assert their right which is why it’s important to file this motion at the arraignment or soon thereafter.  Furthermore, this factor is normally not the critical component of the analysis.

  1. Prejudice

The prejudice prong is probably the most important factor the court considers.  In any misdemeanor or infraction case, if one (1) year has lapsed 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 their right to a fair trial has been impaired by the delay.  For instance, witness’s memories fade, material witnesses are no longer alive or unavailable, evidence has dissipated or lost or destroyed, etc.  In any felony case, the burden is on the defendant to demonstrate prejudice.

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 at the Law Offices of John D. Rogers.

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