What is Serna Motion?

A Serna motion is a motion that your attorney can file to have your criminal case dismissed. This motion is filed and argued if your speedy trial rights have been violated. Generally, a person has the right to have their jury trial soon after they are arrested, charges are filed, or if there is a holding order after a preliminary hearing. These motions are typically filed at the Pretrial stage of your case, where you are arguing that based on a delay, your case should be dismissed.

When would a Serna Motion apply to my case?

A Serna motion is based on two speedy trial rights, one found under the United States Constitution, and the other found under the California Constitution.

For a Serna motion to be granted under the United States Constitution, these four factors must be weighed:

  1. The Length of the delay;
  2. The reason for the delay;
  3. Your (defendant’s) assertion of their speedy trial rights; and
  4. The prejudice you faced based on the speedy trial right violation.

Under the California Constitution, the judge only considers:

  1. Actual prejudice that you suffer based on the delay; and
  2. The prosecution’s justification for the delay.

The main difference here is if there is no prejudice suffered by you under a State Serna motion, then you are out of luck, even if the delay is long and unjustified. In other words, you have to show the damage, to get the remedy. That is not required under the United States Constitution. Prejudice is presumed under the United States Constitution based on the length of the delay.

When do my Speedy Trial Rights begin to become violated?

Under the United States Constitution, when the violation occurs or “attaches” is based on whether the charge is a misdemeanor or a felony charge. If you are dealing with a misdemeanor charge, the right to a speedy trial attaches either when a formal complaint is filed against you in Court, or if you are arrested and released from jail with some restriction (such as bail).

For felony cases, the right attaches when you are arrested, but there must also be a holding older after a Preliminary Hearing or an Information filed, for this right to attach. A felony complaint does not start the clock for a speedy trial under the United States Constitution.

Under California State Law, the right attaches to the date any Complaint or charging document is filed against you, or an arrest with a restraint, whichever of the two happens first. There is no felony/misdemeanor complaint distinction under State law as there is under the United States Constitution.

What happens if my Serna Motion is granted?

A successful Serna motion effectuates a dismissal of your criminal case. In other words, a successful motion means your speedy trial rights were violated, and the only avenue next, is that a Judge must dismiss your criminal case based on that violation.


If you are faced with an old criminal case that you recently learned was in warrant status, a Serna Motion might be the right option to work towards getting your case dismissed and your charges dropped. Speaking with an experienced Ontario Criminal Defense Attorney can help to guide, draft, and argue your motion to success in court. A successful motion means that your case goes away, and you do not receive a criminal conviction.

We can help you through your criminal case, and the rights and defenses available to you, give us a call at 909-939-7126.