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Serna Motion

Serna Motions in California (Right to a Speedy Trial)

Under the Sixth Amendment to the U.S. Constitution and the California Constitution, you are guaranteed the right to a speedy trial once you have been charged with a crime.

Suppose your attorney believes this right has been violated due to unnecessary delays and your chances for a fair trial have been damaged. In that case, they may file a "Serna motion" asserting that your speedy trial rights have been violated. If the court agrees and grants the motion, the charges against you must be dismissed.

Under Article I, Section 15 of the California Constitution, your right to a speedy trial begins when a complaint or any other charging document is filed against you or the date you are arrested if a continuing restraint follows it.

Serna Motions in California (Right to a Speedy Trial)
A Serna motion address the right to a speedy trial and could result in the dismissal of the charges.

A Serna motion is a pretrial motion to dismiss criminal charges because you were denied the constitutional right to a speedy prosecution or trial. Serna motions are commonly known as “speedy trial motions.”

It's a motion that your criminal defense lawyer would file before the trial begins. They are often filed when there has been an unusually long delay in bringing you to trial. Suppose the judge determined this delay violated your speedy trial rights. In that case, the criminal charges must be dismissed.

In misdemeanor cases in California, you have the right to a trial within 45 days of the arraignment or 30 days if you are in custody. In felony cases, you have the right to a trial within 60 days of the felony arraignment.

Once your lawyer files a Serna motion, the judge will hold a hearing where both your lawyer and the prosecutor will present evidence relevant to the motion. After arguments, the judge will decide, before your trial, whether to grant the motion and dismiss the charges.

What Is a Serna Motion?

In simplest terms, a Serna motion is a pre-trial motion to the court to dismiss a case because the defendant's constitutional right to a speedy trial has been violated due to unnecessary delays. Serna motions rely on the Sixth Amendment to the United States Constitution.

It derives its name from Serna v. Superior Court (1985), a lawsuit brought by Joaquin Mario Serna, a defendant in an earlier misdemeanor case. Serna claimed there had been more than a four-year delay between when the complaint against him was filed and when he was arrested.

He filed a separate complaint after the courts denied his motion to dismiss. In 1985, the California Supreme Court ultimately held that the charges must be dismissed if the defendant's speedy trial right was violated.

What Constitutes a Speedy Trial?

While the term "speedy trial" in the Constitution only refers to a "reasonable" amount of time between criminal charges being filed and the trial itself, both California and the federal government have established guidelines for what is considered reasonable, such as the following:

  • Under California law, it's within 45 days for misdemeanor offenses;
  • 30 days if you're in custody and 60 days for felonies;
  • Under federal law, your trial should start within 70 days.

For California cases, the "speedy trial" clock typically starts when either of the following occurs:

  • Your arrest, but only after a continuing restraint;
  • Your arraignment, such as the filing of a complaint;

Notably, however, for felony cases, the clock starts running when one of the following occurs:

  • You're arrested;
  • An order to hold you after a preliminary hearing;
  • An indictment or information was filed against you.

For federal cases, the clock typically starts when you are indicted or after your first appearance in federal court.

That being said, there are often mutually-approved delays that can extend this time frame in both state and federal cases—and in some cases, it's in your best interest for your attorney to approve the delay to give you more time to prepare your defense.

When Should You File a Serna Motion?

A defense attorney might file a Serna Motion when they believe their client's right to a speedy trial has been violated due to unnecessary delay by the prosecution. This typically arises when trial dates get pushed repeatedly after criminal charges have been filed.

It's important to note that not every delay can justify a Serna Motion. Only those unreasonable delays that cause significant prejudice to the defendant's ability to present a fair defense are actionable.

What are the Criteria for Granting a Serna Motion?

The court will consider several factors to determine whether a Serna Motion should be granted, as discussed below.

Length of Delay

The length of the delay is the first and most straightforward factor considered in a Serna motion. This refers to when the charges were filed and when the trial is set to commence.

Criteria for Granting a Serna Motion
The judge will consider several different factors to decide whether to grant a Serna motion.

A minor delay may not be grounds for a Serna motion. However, excessively long delays, or repeated requests for delay, can hinder the defendant's ability to mount an effective defense.

Prosecution's Reasons for Delay 

The court will examine the reason for the delay, considering whether it was intentional or negligent by the prosecution. Deliberate delays can easily be grounds for granting a Serna motion since these are regarded as prosecutorial misconduct.

Acts of negligence are less weighty but may be considered, among other factors. If the reasons for delay are valid (e.g., waiting on a witness to become available), the motion is more likely to be denied.


The court will question whether the defendant has made every reasonable effort to speed up the process and quash delays. In other words, they don't want defendants simply "waiting out the clock" and then filing a Serna motion.

Prejudice to the Defendant

The delay must have caused substantial prejudice to your ability to receive a fair trial. This could manifest as lost evidence, faded memories, or unavailable witnesses.

What Are the Possible Outcomes of a Serna Motion?

If a Serna motion is successful, the most common outcome is the dismissal of the case. This is based on the premise that the defendant's constitutional right to a speedy trial has been violated, rendering any further prosecution unjust.

Possible Outcomes of a Serna Motion
Contact our criminal defense firm for help.

Suppose your Serna motion is unsuccessful. In that case, you can use California criminal appeals process to appeal the decision.

Suppose the court denies your Serna motion, and you are convicted of the charges against you. In that case, you can also appeal your conviction. You could argue that the court was wrong to deny the Serna motion because the state violated your constitutional right to a speedy trial.

If you need more information about Serna Motions and speedy trial motions to dismiss your criminal case, contact our California criminal defense lawyers to review the case details and legal options.

You can contact our law firm by phone or via the contact form. Eisner Gorin LLP has offices in Los Angeles, CA.

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