Thursday, August 20, 2015

How to Clear an Old Warrant in California, part 2

In my previous post, I described the process of adding a case onto the court's calendar to clear up an old warrant if you've previously failed to appear.  In this post, I want to discuss a little more about what happens when there has been a long delay between the commission of the crime and a defendant's appearance in court.

My last post briefly mentioned the "Statute of Limitiations" (or "SoL" for short).  I mentioned that the SoL will not usually help you if you have an outstanding warrant.  The SoL refers to the time between the commission of the crime and the filing of charges.  The SoL for most misdemeanors in California is one year.  This means that the DA must file a criminal complaint within one year of the crime or else they will be barred from doing so.

Often, the DA will file criminal charges against a defendant within the SoL, but the defendant fails to appear in court.  When the defendant misses his court date, a warrant will be issued and it will remain in effect until it is recalled by a judge.  If the defendant is captured and brought to court several years from now, he may not claim the protections of the SoL because the charges were filed within the statutory period (within one year of the date on which the crime was committed), even if the defendant's first court appearance did not happen within that time.

Even if the SoL isn't a winning argument in your case, you might have other defenses that arise when there has been a long delay.  The US Constitution assures the right to a speedy trial.  If you have had an arrest warrant outstanding for a long period of time, you might have an argument to dismiss the case based on a violation of this constitutional right.  This is called a Serna motion.

In a Serna hearing, the judge is weighing several different considerations:  How long has the delay been?  Why did the delay occur?  Has evidence been lost or destroyed?  Have witnesses become unavailable to testify?  Is it still possible to conduct a fair trial?

The big difference between an SoL argument and a speedy trial argument is the time period that we're focused on.  Remember, when we're talking about the SoL, we're talking about the date of the crime until the date on which charges are filed.  When we're talking about speedy trial rights, we're talking about the period of time between the filing of charges and the defendant's first court appearance.

Generally, if more than one year has elapsed between the filing of charges and the defendant's first court appearance, then the burden falls on the DA to justify the delay.  The DA might explain why the delay is the defendant's fault and not the state's fault -- maybe the defendant signed a "promise to appear" and then failed to appear.

If the DA can prove that the defendant had actual notice of his original court date but never showed up, then the judge will want to hear a very compelling argument as to why the defendant should benefit from his own broken promise.  Maybe the defendant can prove that his original court date was rescheduled or relocated without proper notice.  Maybe it was filed under the wrong name.

Even if the delay is entirely the defendant's fault, a judge might agree to grant a Serna motion and dismiss a case when it can be proven that evidence is no longer available and that the defendant would be prejudiced by standing trial today on such an old case.

If you or a loved one has an old warrant in California, call our office for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.