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.)

1382: STATUTORY SPEEDY TRIAL

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.

HOBBS

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.

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.)