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A Serna motion is a motion that is used to get a criminal case dismissed if the defendant’s speedy trial rights have been violated. A Serna motion can be filed in a variety of situations, but for purposes of this page, we will only focus on the filing of Serna motions in misdemeanor criminal cases in which a defendant did not know that a criminal case had even been filed.

Statute of Limitations

A statute of limitations is what limits the time by which a criminal case can be filed. For most misdemeanors in California, unless it is a wobbler (which is a crime that can be charged as either a misdemeanor or a felony), the statute of limitations is 1 year. This means that the prosecutor has 1 year from the commission of the crime to file criminal charges.

When Should Your Criminal Defense Lawyer File a Serna Motion?

The most common scenario in which a Serna motion is filed in a misdemeanor criminal case is when years go by before the defendant finds out that he or she actually had an open criminal case. In this case, the defendant probably never even went to court, or only went on the first scheduled court date and found out that a criminal case still hadn’t been filed yet. The delay could have been the fault of the prosecutor’s office, and the delay may actually hurt the defense because witnesses may have already forgotten what happened in the case. These things can help get a case dismissed.

What Makes a Serna Motion Successful?

Judges look at 4 different factors:

  1. the length of the delay in prosecuting the defendant
  2. the reason for the delay
  3. whether the defendant ever got a chance to assert his or her right to a speedy trial
  4. has the delay hurt the defendant’s ability to defend himself or herself

Length of the Delay and Reason for the Delay

If the delay in prosecution is long, that usually works in the defendant’s favor. This is because long delays mean that a case has been lingering for a long time despite the importance of criminal defendants being able to fight their criminal cases in a speedy manner. Also, a lengthy delay means that the evidence collected might not be as good.

With regard to the reason for the delay, if it is the prosecution’s fault that the defendant did not know about the open case, the judge will weigh that factor in favor of the defendant. For instance, if the prosecution had the wrong address for the defendant and the defendant had proof that he or she had appeared for the first scheduled court date but nothing had been filed yet, that would be more favorable to the defendant because a letter from the prosecutor’s office was probably sent to the wrong address.

Has the Delay Prejudiced the Defense?

This is a very important factor. If the case depends on scientific evidence, and that evidence is no longer  good after a few years, then the delay absolutely hurts the defense. The defendant can no longer use that evidence in his or her defense. Also, after so many years, witnesses have already forgotten what they saw or what was said during the incident. For these reasons, prejudice against the defense will weigh in favor of the judge granting the motion and dismissing the criminal case.

Serna motions can be very useful in criminal cases. The best criminal defense lawyers look for every way possible to get a case dismissed. Whether it’s because you were not aware of the case due to an error by the prosecutor’s office or because something else caused you to think that a case was never filed, our law firm will fight aggressively to get your criminal case dismissed. We proudly represent clients in Orange County, LA County, Riverside County, San Bernardino, and all of southern California, in state AND federal court. We conduct business with our clients in person and remotely. Our phone number is 213-235-7969 and we look forward to discussing your case with you.

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