Here is the scenario: A person is arrested, they are released either on bail or with an O.R. citation and given a future Court date to appear and answer to the charges. However, the person fails to appear and a warrant is issued for their arrest. A long period of time goes by, more than one year, and they want to clear up the matter by getting the warrant recalled. One possible option the person has is to file what is called a Serna Motion in order to get the charges dismissed.
A Serna Motion is a request to to the Court to dismiss the case based on the delay of the prosecution to pursue the charges and pursue the case in a speedy manner. The motion is sometimes referred to as a “Speedy Trial Motion” because the Prosecutor has denied the defendant of his right to a speedy and expeditious trial. One of the factors the Court considers is whether the defendant willfully failed to appear, thereby contributing to the delay. While a failure to appear is a significant factor, it in and of itself is not enough to deny the motion.
Another consideration is what prejudice the delay has caused the defendant. In other words, how much has the delay or passage of time caused damage to any defenses the defendant can present. One form of prejudice is the inability of witnesses to remember the event in question. Lack of recollection can be a huge form of prejudice to the accused. Also, evidence may have been lost or destroyed which can prejudice the case.
In California prejudice is presumed if the delay in getting the case to trial exceeds one year. This means the defendant does not need to present evidence of prejudice if the age of the case is greater than 12 months.
How long does it take to have a Serna Motion heard by the Court? It’s best to file a Serna motion at the arraignment or soonest possible time thereafter. The Defense must serve the District Attorney or Prosecutor at least 10 Court days prior to the hearing.
What if the Judge grants the Serna Motion? If the motion is granted the case is dismissed and cannot be refiled, the case is over and the defendant’s criminal record stays clean.