When Prosecutors Fail To Prosecute, Charges Can Be Dropped

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A defendant who has not been brought to trial within a reasonable time may move the court for an Order to dismiss the complaint on the grounds that his right to a speedy trial has been violated.  The basis for this is found in both the United States Constitution and in California state law.  The constitution states that everyone has the right to a speedy and public trial.  This right is then enforceable by states by the virtue of the due process clause in the 14th amendment.

When the State (Prosecutors / DAs) delays in filing a complaint after an arrest, it becomes prejudicial for the defense, triggering a possible argument to be made that the case should therefore be dismissed.  In misdemeanors, the State has a one year statute-of-limitations.  This means that from the date of the incident, the government has a year to decide whether they want to press charges against a Defendant.  Similarly, when there is a delay in bringing the defendant to trial after formal charges have been filed, the Defendant can claim that his right to a speedy trial has been infringed upon, justifying a dismissal in the case.

Factors considered:

A presiding judge will generally look to factors set forth in Barker v. Wingo (1972) 407 U.S. 514, 530 to see whether a dismissal of the case is warranted.  Factors include: (1) the length of the delay in bringing the case (or the Defendant) to court, (2) The reason for such a delay, (3) Whether or not the defendant asserted his right to a speedy trial, and (4) whether the Defendant has suffered any prejudice as a result to the State’s delay.    The court weighs in all four factors and makes a ruling on the motion.

Your rights are important to us at the Law Offices of Lisa Wong.  If you have been charged with a crime and want to know more about the “Serna” motion (Speedy trial motion) and whether one is appropriate in your case, contact the Law Offices of Lisa Wong today for a free consultation.


Law Offices of Lisa Wong



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