Criminal Defense

What is a Speedy Trial ‘Serna Motion’ in Criminal Law?

December 04, 2017 by Seppi Esfandi in Criminal Defense  
Thumbnail for: What is a Speedy Trial ‘Serna Motion’ in Criminal Law?

The Right to a ‘Speedy Trial’ Serna Motion

United States Sixth Amendment for ‘Speedy Trial’ Serna Motion

The Sixth Amendment to the U.S. Constitution guarantees the right to a speedy trial for all criminal cases (it does not apply to civil cases). Under the federal constitution there is no precise measurement of what is considered “speedy.”

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

California Penal Code § 1382

The term “speedy” is relative in the legal context for California too. What constitutes a speedy trial in one instance, might not in another. In general, a speedy trial is one that occurs as soon as reasonably possible. Any delays must be justified.

“In California, the government (prosecutor and court) must get a felony defendant to trial within 60 days of arraignment on an indictment or information unless there is “good cause” for delay.”

Reasons For a Speedy Trial ‘Serna Motion’

Among the justifications for the right to a speedy trial are:

  • to effectuate the constitutional right of the accused to a speedy trial
  • avoiding lengthy, unfair imprisonment
  • minimizing the anxiety of waiting for the case resolution, and
  • protecting the defendant’s ability to defend themselves fairly (eg, evidence may disappear, witness memories may fade)
  • to further the interests of justice, the public, victims, witnesses in the most fair, accurate, and timely manner
  • to ensure effective utilization of legal resources

The defendant, however, has the right to waive his constitutional rights to a speedy trial. But that is rarely required in most cases.

The Serna Motion

A “Serna motion” is a motion to dismiss California misdemeanor or felony charges because the defendant was denied their constitutional right to a ‘speedy trial’, in violation of California’s fast and speedy trial law.

Serna motions, or “speedy trial motions”, are usually filed by your criminal defense attorney as part of the pretrial process in California criminal law. A Serna motion can be based on either or both of:

  • The Sixth Amendment to the United States Constitution; and/or
  • Article I, Section 15, of the California Constitution.

A successful Serna motion will result in the criminal charges against you being dismissed.

California Courts conduct speedy-trial analysis differently, depending on how it was filed. Under the U.S. Constitution, there’s no set time for a speedy trial. Therefore, when a defense claims a violation, the court assesses the following:

  • the length of the delay,
  • the reason for it,
  • whether the defendant asserted the speedy-trial right, and
  • whether the wait compromised the defense.

For example, a defendant waiting two years to assert his right to a speedy trial will be in a worse position than the defendant who claims it after seven months. Furthermore, a defendant who requests a dismissal instead of asking for a speedy trial is not truly asserting his right, but rather is seeking to avoid criminal liability, based on delays.

The judge will look at the reason the trial is delayed: was the docket overcrowded? Were witnesses unavailable? Were test results taking too long?

The Judge will also look at continuances and when and by whom they are requested. Also relevant is whether the continuances were opposed. It is not a straightforward decision. The Judge also looks at prejudice. Was the defendant harmed by a delay? Was the defendant’s right to a fair trial violated?

Apart from the constitutional right, in the federal courts, there’s a separate speedy-trial right in the Speedy Trial Act. In California law, there’s also a benchmark for the speedy-trial evaluation. You should always have a criminal defense attorney help you, as these are tricky motions, and if granted will result in the case being dismissed.

When do ‘Speedy Trial’ Rights Start?

California Law

Under Article I, Section 15, of the California Constitution, your right to a speedy trial begins either:

  • The date a complaint or any other charging document is filed against you, or
  • The date you are arrested (if that arrest is followed by restraint)

Federal Law

For Serna motions filed under the Sixth Amendment, the laws are as follows:

In a misdemeanor cases, the clock starts running as soon as either of the following occurs:

  • The filing of a complaint, or
  • The date you are arrested (if that arrest is followed by restraint)

But in felony cases, the clock starts running when one of the following occurs:

  • The defendant is arrested,
  • A holding order is issued for the defendant following a preliminary hearing; or
  • An indictment or information is filed.

This is one major difference between the Federal and California law on Serna motions. Under federal law, a felony complaint does not start the speedy trial clock running–only an indictment or information can do that.

Are You in Need Proper Criminal Defense for ‘Speedy Trial’ Serna Motion?

Rights to a Speedy Trial and Serna Motions are very complex and can be quite tricky, requiring a good Los Angeles Criminal Defense Attorney. We cannot stress enough the importance of retaining a lawyer to fight your case ASAP. Give us a call if you’ve or your loved one has been arrested in Los Angeles.

Need a ‘Speedy Trial’ Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.

Speedy Trial 'Serna Motion Read our Client Reviews

Contact Us:         
Esfandi Law Group QR Code
Esfandi Law Group
Lara S.
December 3, 2019
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

Get a Free Consultation

    Free Consultation Form