A Serna motion can be made to dismiss charges if your right to a speedy trial is violated.
In a criminal case, a defendant has a right to a speedy trial. This right is guaranteed by both the Sixth Amendment of the United States Constitution and Article 1, Section 15 of the California Constitution. But what exactly does the right to a speedy trial mean — and how can you enforce your right to a speedy trial if you are a defendant in a criminal case?
As a criminal defense lawyer in Orange County, CA will tell you, speedy trial rights are broken down based on your rights under federal (United States) law and California law. Under federal law, your right to a speedy trial starts running in a misdemeanor case starts whenever a complaint is filed or you are arrested, but only if the arrest is followed by some kind of restraint, like a bail requirement. For felony cases, the clock starts running on your speedy trial rights once you are arrested, a holding order is issued for you following a preliminary hearing, or an indictment or information is filed. If there has been a delay in bringing your case to trial, your criminal defense lawyer in Orange County, CA can file what is known as a Serna or speedy trial motion, asking for the charges to be dismissed. The judge will look at four factors in federal cases to determine if your rights have been violated:
1.1 The length of the delay in bringing your case to trial;
1.2 The prosecution’s reasons for the delay;
1.3Your assertion of your right to a speedy trial; and
1.4 he prejudice that you have suffered from the delay.
If a delay is unreasonably long, or more than one year in a misdemeanor case, there is a presumption that a defendant has suffered prejudice. Based on these factors, a judge will make a determination about whether your speedy trial rights have been violated — and if your case should be dismissed as a result.
Under California state law, your right to a speedy trial starts the date that a complaint or a charging document is filed against you, or the date that you are arrested (if the arrested is followed by some form of continued restraint), whichever is earlier. As with federal charges, your criminal defense lawyer in Orange County, CA can file a Serna motion in state court, asking for the charges to be dismissed based on a violation of your speedy trial rights. The court will look at two factors:
1.5 The justification for the delay; and
1.6 Any prejudice to you from the delay.
However, unlike in federal cases, there is no presumption of prejudice if there is a long delay in bringing a case to trial. You will have to show that you suffered harm as a result of the delay, such as witnesses being unavailable, or evidence being lost or destroyed.
If you have been charged with a crime, a skilled Orange County criminal defense attorney can help defend your constitutional rights, including filing a Serna motion when appropriate. Contact the Chambers Law Firm today at 714-760-4088 or dchambers@clfca.com to learn how we can help you. Our skilled team of attorneys is committed to assisting our clients and to protecting their rights.
