Ways to Win Your Case

This is a way to argue your case is dead on arrival. Demurrers have to happen at the beginning of a case. Otherwise, you can bring the same arguments later, but not through a demurrer. Demurrers are the first way you can get the judge to dismiss your case. You can demur for many reasons, including:

Improper Venue

The DA filed charges in the wrong county. For example, you committed a crime in Los Angeles, but the DA filed a case against you in Ventura County.

STATUTE OF LIMITATIONS

The DA waited too long to charge you. The DA has one year to file most misdemeanor offenses after they occur, and three years for most felonies, but the statute of limitations is longer for some types of crimes like many sex offenses and fraud.

Bring this motion early on to argue your case must be dismissed because the DA waited too long to bring you to trial. The motion you need to file depends on when the delay occurred.

MISDEMEANOR OR FELONY: PRE-FILING DELAY

Typically the statute of limitations (see “Demurrer,” above) will take care of this situation for you, but sometimes not. If the prosecution waited so long after the offense occurred to file your case that you are somehow “prejudiced” or disadvantaged, you can bring a motion to dismiss based on the due process clause of the federal Constitution. The court will balance the reasonableness of the government’s delay against the prejudice the delay caused you.

MISDEMEANOR: POST ARREST OR POST COMPLAINT

The 6th Amendment of the federal Constitution attaches in misdemeanor cases when you are arrested or after the DA files a misdemeanor charge against you in a complaint. Your argument will be strongest if the delay exceeded one year, and if you can demonstrate the delay has somehow made it more difficult for you to present your defense, or caused you “prejudice.” Under the 6th Amendment, you do not necessarily have to prove “prejudice” resulted from the delay, particularly if the DA and police did nothing to try to find you and bring you into court. If you show your case has been delayed for more than a year, the burden shifts to the government to justify the delay. These motions are commonly referred to as “Serna” motions in California.

Example: Police arrest someone for a misdemeanor and release them with a citation or “promise to appear.” The person appears in court on the date the police provided, but the DA fails to file the case by the initial court date. The DA files a complaint a few months later, but the person has no idea the case is pending. The court issues a warrant when the person fails to appear in court. A couple of years go by before the person finds out they have a warrant. They put themselves on calendar in court to address the warrant. The first move in this case should be to file a motion to dismiss based on the federal speedy trial guarantee. The California Constitution (Article I, Section 15) and federal due process also protect you in this situation, but you have to demonstrate prejudice.

FELONY: POST COMPLAINT, PRE-INFORMATION

The filing of a felony complaint does not trigger federal speedy trial protections in felony cases in California. The 6th Amendment attaches only with a “formal accusation,” which occurs usually after your preliminary hearing, when the DA re-files the charges via an “information” rather than a complaint.

The California Constitution, however, protects you from unreasonable delays occurring after the DA files a felony complaint. You will have to demonstrate that the delay has somehow impaired your ability to present your defense. The judge will balance the disadvantage of the delay for you against the government’s justification for the delay. The longer the delay without justification, the less disadvantage or “prejudice” you will need to show to get your case dismissed, and vice versa. If the delay has crippled your ability to defend yourself, for example, if a key defense witness has died or you’ve lost records proving your alibi–that you were somewhere else when the crime occurred–for example, the government will have to show a very strong justification for the delay to avoid dismissal, and sometimes no excuse will suffice.

Federal due process also covers you in this situation, and it involves the same legal test.

FELONY: POST INDICTMENT OR INFORMATION

The 6th Amendment technically covers this situation but a motion to dismiss is very rare, as you would typically be well-aware that charges are pending at this point, as your case would have already gone through the preliminary hearing phase (or a grand jury indictment, but those are uncommon in California.)

STATUTORY SPEEDY TRIAL AND PRELIMINARY HEARING RIGHTS

Pleading “not guilty” to charges in court starts the clock on firm timelines for the government to start the trial on your charges. A jury trial officially starts when the judge handling your trial swears in a group of jurors to begin the process of jury selection for your case.

In misdemeanor cases, your trial must begin within 30 days of you pleading “not guilty,” if you are in custody (jail), or within 45 days if you are out of custody. If the government fails to start your trial within these time limits without “good cause.” section 1382(a)(3) of the Penal Code requires dismissal of the case, and the charges cannot be refiled. “Good cause” is not just an excuse, it’s a technical legal term with strict requirements.

In felony cases, some additional rights and deadlines apply. In felony cases, you have the right to a speedy preliminary hearing within 10 court days of pleading “not guilty” to felony charges. If you are in custody, the judge must dismiss your case if the government violates this time limit without “good cause,” per Penal Code section 859b. After the preliminary hearing, the DA must re-file the charges against you in a felony “Information” within 15 days, or the case must be dismissed per section 1382(a)(1). Finally, for a felony case, your trial must commence within 60 days you pleading “not guilty” to the charges filed in the felony Information. Otherwise, section 1382(a)(2) mandates dismissal, but the prosecution can, in most situations, refile felony cases one time following a dismissal.

File a motion to suppress to argue the police violated your 4th Amendment rights in the course of the investigation of your case. Visit our page Know Your Rights to see what violations may have occurred in your case. If you win a motion to suppress, the DA cannot use the evidence police obtained as a result of violating your rights. This will often result in a dismissal of your case, as the DA can no longer prove the charges against you without the suppressed evidence.

PENAL CODE 1538.5 SUPPRESSION MOTION

No Warrant. If the police had no warrant to detain, search, and/or arrest you, your suppression motion can be very simple. You only need to describe the evidence you seek to suppress (such as “suspected methamphetamine,” “cell phone,” etc.) and point out that the police didn’t have a warrant. The burden then shifts to the DA to demonstrate that an exception to the 4th Amendment’s warrant requirement applies. You must bring this motion pursuant to section 1538.5 of the Penal Code.

Warrant. If the police had a warrant, you can still move to suppress evidence based on 4th Amendment violations, but you will usually need to file a separate motion to attack the search warrant. You can avoid filing a complicated motion, however, where the warrant did not cover a specific search. For example, if police had a warrant to search Mark’s house for guns, but they also took a swab of saliva from his mouth to get a DNA comparison sample, Mark could move to suppress the DNA sample as a warrantless search. The search “exceeded the scope” of a valid warrant. Typically though, when the police obtained a search warrant, your attorney will need to file one or more of the motions below to get evidence suppressed in your case.

MOTION TO QUASH WARRANT

A motion to quash argues that the judge who issued a warrant in your case was wrong. Police obtain a warrant by submitting an affidavit to the judge describing the reasons why they believe the places they are asking to search will contain evidence relevant to their investigation. Police can also obtain warrants to arrest people or seize specific items. The judge must determine whether the warrant affidavit contains “probable cause” to support the search or seizure. See our Know Your Rights page to learn more about probable cause.

If you have an unredacted copy of the search warrant and supporting affidavit, you can bring a motion to quash to argue the judge was wrong in issuing the warrant. You can argue the police did not present information amounting to “probable cause,” or you can argue the warrant had other defects. A warrant may be defective because it is overbroad. For example, if a warrant establishes probable cause to believe that social media data will contain conversations and photos related to a crime that occurred a week prior, but the police request all of the suspect’s social media data for all time, the warrant is overbroad and should be quashed.

MOTION TO TRAVERSE AND QUASH WARRANT

A motion to traverse and quash argues that the police essentially tricked the judge into issuing the warrant in your case by including misleading information or omitting information that may have changed the judge’s mind. These motions are often referred to as “Franks” motions based on the United States Supreme Court case Franks v Delaware (1978) 438 US 154 that sets out the process for a motion to traverse.

First, the defense must present information showing that police either intentionally or recklessly included false or misleading information or omitted important facts in their warrant affidavit. The defense must demonstrate that but for the misleading information or omission, the judge would have rejected the warrant as lacking probable cause. If the defense cannot make this showing, they must explain why. If the defense makes it through this initial stage, the court must grant a hearing on the motion to traverse.

At the hearing, the defense and prosecution can present evidence. Some published cases involving successful Franks motion to traverse litigation involved:

• Presenting expert statements that the police could not have “smelled” methamphetamine coming from a locker. (U.S. v. Johns (1988) 851 F.2d 1131.)
• Presenting alibi witness statements and proof the police officer lied. (People v. Broome (1988) 201 Cal.App.3d 1479.)
• In a child pornography case, omitting the fact that officials in another jurisdiction had already determined the photos not illegal. (United States v. Perkins (2017) 850 F.3d 1109.)

At the end of the hearing, the judge decides whether or not the police included or omitted important facts in a misleading way, whether intentionally or recklessly. If the judge decides that the police did, the judge adds in the omitted facts or removes the misleading ones and then determines whether the warrant still establishes probable cause. If not, the warrant must be quashed.

LUTTENBERGER AND HOBBS

When a warrant declaration is unsealed, and the defense needs more information about a confidential informant to prepare their motion to quash, the defense can file a Luttenberger motion to obtain information about a confidential informant police used in their investigation. More often, affidavits supporting a warrant request are sealed or partially sealed. In this situation, if police used a confidential informant, the defense can file a Hobbs motion. A Hobbs motion requires the judge to review the full affidavit supporting the search warrant, without the defense being present, and to ask questions regarding a confidential informant’s credibility and to investigate other issues potentially affecting the reliability of the information in the search warrant affidavit. If the court determines the identity of a confidential informant or other privileged information should be disclosed, the prosecution can choose to disclose the information to the defense and proceed to a hearing on the motion, or else the judge may grant the defense motion outright. (See more about Hobbs motions under “Discovery Motions.”)

MIRANDA

Miranda rights are not 4th Amendment rights that can be brought in a suppression motion, but the motion results in suppressed evidence. Miranda rights stem from the 5th Amendment privilege against self-incrimination and the 6th Amendment right to counsel. Many people believe their case should be thrown out if the police failed to read them their Miranda rights. When a person is under arrest, the police must advise the person their Miranda rights before questioning them. If they don’t, the DA usually cannot use any of the statements the person made to police, unless the person says something different while testifying at trial. That is the only result of police failure to read an arrested person their Miranda rights. The case will not be dismissed, unless the DA cannot prove the case without those statements.

A discovery motion is a legal argument to get the judge to order the DA to give you evidence. To successfully litigate your case, you have to have all of the evidence, good and bad. The DA should give this to your attorney without the need for a legal battle in court, but sometimes the don’t, and discovery motions are necessary. It is possible to get a case dismissed through a discovery motion, but typically your attorney will file this to obtain evidence to help you win your case at trial, or to successfully litigate another type of motion.

Motion to Compel

The Constitution requires the prosecution to give you “exculpatory” evidence, meaning evidence that is helpful to you, whether it be proof suggesting you are innocent, or proof that hurts the DA’s case against you, like evidence that one of their witnesses lied. Penal Code section 1054 additionally requires the DA to give you all relevant the evidence police obtained in the course of their investigation of your case, on an ongoing basis. If the DA is not providing evidence you need to prepare for trial, your attorney can file a motion to compel to obtain a court order for discovery. If the DA fails to comply with the court order, the court can make additional orders such as:

• Telling the jury the DA concealed evidence from you
• Holding the DA in contempt
• Excluding the evidence
• Dismissing the case (only granted in extreme cases)

Pitchess Motion

If the police used excessive force against, or you believe they were dishonest or otherwise violated your rights, you may have a basis for a Pitchess motion. Police personnel records are protected in California, though recent legislative changes have expanded access to police disciplinary records. When people make complaints about a police officer, or if the police department reprimands an officer, the police agency must store these complaints and discipline records. You have a right to obtain limited information from these records if you provide the judge with some evidence to believe that the officer violated your rights. Your statement that an officer lied or used excessive force against you can be enough in some situations. The DA also has a duty to let you know when an officer has evidence of misconduct in their personnel file. A Pitchess motion must be filed to access the information in either situation. Pitchess motions have more technical requirements than other motions that you can review here. Below are some examples of reasons you may want to file a Pitchess motion:

• Officer used excessive force against you
• Officer planted evidence
• Officer lied in police report
• Officer purposely failed to turn on body camera
• Officer lost or destroyed evidence
• DA told you officer may have Pitchess material in personnel file

Obtaining Pitchess discovery can help you at trial. If the jury finds out that the officer who arrested you has a prior history of lying on the witness stand, for example, they may not believe what he says happened in your case. Or, if you are charged with resisting arrest, an officer’s prior history of using excessive force may give your self-defense argument more power.

Subpoena Duces Tecum

This is not a discovery motion, but another tool at your disposal to obtain evidence. If you believe a business may have records helpful to your defense, your attorney can subpoena them. The records will be mailed to the court, and the judge will release them to your attorney, unless the DA files a motion to quash. Records that may be helpful to subpoena include:

• Medical records showing the alleged victim sustained no injuries
• Prior police reports showing alleged victim made false accusations against someone else
• Surveillance footage of the alleged crime (you would not believe how often police fail to obtain this themselves)
• Credit card records showing you made a purchase in another town at the time of the crime (to support alibi defense)
• Social media records showing the victim threatened you or others or had weapons (to support self defense)

Motion to Quash

Filing a motion to quash is the only legitimate way to object to release of subpoenaed records. DA’s will often simply object in court, but this is insufficient to block a party from receiving subpoenaed records. If the DA files a motion to quash to block you from receiving records, the judge will balance 7 factors often referred to as the “Touchstone” factors to determine if you are entitled to the records. The same test applies if the DA tries to obtain your records, and you file a motion to quash. If the DA has subpoenaed records that the government has no right to review, such as records from your therapist, the court must quash the subpoena and not disclose the privileged records.

Diversion is a great way to get your case dismissed without the risks involved at trial. California offers several forms of diversion, including:

• Judicial Diversion (PC 1001.95): This is only available for misdemeanors and excludes some misdemeanors like domestic violence and sex offenses. Judicial diversion can last for up to 2 years but it is usually granted for less time. The judge can impose requirements like community service, classes relevant to your offense, an order to stay away from the alleged victim, and others. You never plead guilty for judicial diversion. If you successfully complete the program, your case is dismissed.
• Mental Health Diversion (PC 1001.36): This is a fantastic diversion program available even in serious and violent felony cases. A small circle of offenses are excluded, including murder, building a bomb, and most serious sex offenses. Mental health diversion is available pre-plea, meaning you do not have to admit guilt to participate. You must have a qualifying mental health diagnosis, which can range from alcoholism or depression to schizophrenia and bipolar disorder. If you successfully complete your diversion terms and treatment, your case will be dismissed.
• Developmental Delay Diversion (PC 1001.20): This program is just like mental health diversion, but it applies to individuals with diagnosed developmental delays rather than a mental health disorder.
• Drug Diversion (PC 1000): A first time offense for simple possession of most drugs qualifies for PC 1000 drug diversion. If granted, you do not admit guilt and your case will be dismissed if you successfully complete the program. It is more important now than ever to do PC 1000 diversion because multiple drug possession convictions can now be punished as felonies per Prop 36 of 2024.
• Military Diversion (PC 1001.80): This program is available for former members of the military who are charged with a misdemeanor or most felony offenses. Excluded felonies include homicide and sex offenses. Veterans or current members of the military charged with misdemeanors do not have to show the offense was connected to a substance abuse or mental health disorder resulting from their military service. Those charged with felonies do.
• Juvenile Diversion Programs: Diversion programs are available for most juvenile offenses, though juveniles may not be deemed suitable if the offense is serious. See more info here.

KEllet

If you have already been prosecuted for an offense, and the DA brings a new, related case, you may have a good “Kellet” motion to dismiss. Per Kellett (which is the name of a court case) when the prosecution is aware, or should be aware, of more than one offense involving the same act, “course of conduct,” or overlapping evidence, all of the offenses must be prosecuted in a single proceeding. If the DA fails to bring all the offenses together in one case, you have a basis for a Kellett motion for the case filed later. For example, if someone pleads guilty to a DUI, and the prosecution later brings an assault charge based on the person ramming someone with their car the same night while they were drunk, the person may have an argument to dismiss the assault case if the prosecution knew or should have known about the ramming conduct when the person pleaded guilty to the DUI.

Mental INCOMPETENCE

Per section 1368 of the Penal Code, all individuals charged with a criminal offense must be mentally competent, meaning they understand the nature of the proceedings against them and are able to assist their attorney in their defense. If a question arises as to whether a person charged with a crime is competent to stand trial, the individual’s attorney or the court can “declare a doubt” as to the individual’s competency. This suspends criminal proceedings and requires a court-sponsored psychologist to evaluate the individual and determine whether the person is competent and if not, whether treatment could help them. If the person will not regain competency within a certain period of time, which varies depending on the offense, the case must be dismissed. The defense and prosecution have a right to a trial on competency.

1385 Invitation to dismiss

This is a request that the court dismiss a case or a charge because it is more or less the right thing to do. Judges’ primary guideline for determining whether they should dismiss charges or enhancements is whether the dismissal would be “in the interests of justice.” 1385 requests may be appropriate where the defendant is technically guilty but had an innocent conscience, meaning they did not know their conduct was illegal. A very common use of section 1385 occurs where a sentence enhancement would be unjust to impose. For example, if a person has prior “strike” offenses, and their action of taking a box of Gatorade from someone’s garage when they were high on drugs would result in life in prison, the judge may dismiss the sentence enhancement based on the strike priors to impose a fair sentence.

In the vast majority of felony cases, you will have a preliminary hearing or “prelim” before your case goes to trial. The prelim is a preview of the evidence for trial. After hearing evidence at your prelim, the judge will decide if the DA has a strong enough case to move forward. Your attorney can make multiple arguments at your prelim to get your case dismissed including:

• Insufficient evidence: The DA failed to present sufficient evidence for one, some, or all of the charges
• Affirmative Defenses: Your attorney can argue that evidence establishes you had an excuse recognized by the law for the crime you committed.
• 4th Amendment Violations: Your attorney can file a motion to argue suppression issues at your preliminary hearing, meaning police violated your rights.
• “Corpus Delicti”: You can’t be convicted of a crime based on your statements alone, without other proof.
• 17(b): This is a Penal Code section that allows the judge to reduce a felony to a misdemeanor at prelim if they believe you are guilty, but the offense should be a misdemeanor rather than a felony.

If the judge finds the DA presented sufficient evidence that you committed the charged crimes, the judge will “hold you to answer” and continue your case for the DA to file an “information.” The information is the document listing the charges you will be facing at trial. Sometimes, the DA will decide to not file charges after prelim and your case will be dismissed. Other times, the DA will file misdemeanors rather than felonies.

If the DA files felonies, your attorney can file a “995 motion” to argue the judge was wrong to hold you to answer at your prelim. Arguments available for a 995 motion include those listed above, like insufficient evidence, but other arguments may also arise. For example, if you discover after the prelim that the DA withheld exculpatory information, you can file a 995 and your case will be dismissed if the judge grants the motion. Other issues may be the prelim judge’s refusal to let you call certain witnesses or put on evidence, or if the judge relied on illegally obtained evidence.