Serna Motions for Lack of Speedy Arrest
A defendant in California may file a Serna motion when the state fails to execute its prosecution in a speedy manner. The defendant must show that he's been prejudiced (harmed) by the delay. For example, alibi witnesses and other defense evidence may no longer be available. Prejudice is presumed when the prosecution delays more than one year.
There are a couple ways the prosecution can delay itself. The first is when the D.A. waits awhile to file charges, even though the D.A. has the evidence it needs. If the D.A. sits on the case long enough before filing, this can lead to an effective Serna issue for the defense.
A second type of delay is when the police fail to execute a California arrest warrant in a timely manner. Once the D.A. files charges, usually an arrest warrant is issued. The defendant typically learns of the charges when he gets arrested. But if the cops fail to arrest him, the defendant may be oblivious to the charges and thus not take steps to preserve useful evidence.
The remedy when a defendant prevails on a Serna motion is dismissal of the case.
