I had a recent client who was being prosecuted with a DUI in LA County that was 10 years old. She never even lived in California, and had gotten the DUI a decade ago while passing through. She missed her arraignment date because she was already back at home on the east coast when it was time for her arraignment and she couldn’t afford to travel back to California to show up in court. (Just so YOU know, an attorney can appear in court for you to fight infractions and most misdemeanors, so often your case can be fought from start to finish without you even being present in court.)
Fast forward 10 years, and she calls our office, scared and confused about what to do with these 10 year old charges. You’d think that the D.A. would drop a case like this, especially because it’s extremely hard to prove a case when witnesses may no longer be around, memories have faded, and other evidence is lost or has been destroyed. But you’re wrong. The D.A. still wanted to prosecute our client, even after so much time had passed.
Fortunately, there is a legal mechanism called a “Serna motion” (based on the Serna case) which says that for misdemeanor cases older than 1 year, there is a presumption the defendant’s 6th amendment right to a speedy trial has been prejudiced.
What the hell does that mean? It means that the burden rests with the prosecution to prove that any delay in bringing the defendant to trial would not result in an unfair trial. It makes NO DIFFERENCE whether it was the defendant’s FAULT that she didn’t show up at her arraignment or at a later hearing. It is up to the D.A. to prove that they did all they could to track the defendant down and serve her with a warrant. The defendant’s actions are only one small factor to consider in whether or not the D.A. did their job, and even then the defendant’s actions must be extreme, like fleeing the country to evade capture, in order to be considered probative of whether or not the D.A. has met their burden.
But no matter what the law says, D.A.’s frequently argue “but, your Honor, it’s the defendant’s fault!” But that’s crap. The prosecution must show that they made best efforts to bring the defendant to trial. Plain and simple.
So guess what happened at my client’s Serna motion I recently argued? Yep, you guessed it. “But, your Honor…!!!” They argued it was her fault for not showing up at arraignment. They argued it was her fault for living out of state. They argued that she didn’t call them up and say, “Here I am! Prosecute me!!!” On it went about how terrible my client is. Not to mention she was financially incapable of returning to California from the east coast. Not to mention she had been at the same job for the past 10 years and could have easily been served with a warrant. Not to mention the D.A. had made absolutely ZERO efforts to serve her with a warrant. Keep in mind that judges don’t always follow the law, and sometimes they buy in to the D.A.’s red herring argument. Fortunately for my client, this judge followed the law, applied the law to the facts of the case, and ruled that the facts didn’t support that the D.A. had met their burden. So the case was dismissed! No fines, no jail time, no probation.
If you have a pending misdemeanor, make sure to contact an attorney to ensure that a Serna motion is right for your situation. You can follow us on twitter at @ticketfixers if you’d like to keep up on the latest goings on with our firm. Until next time!