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Pretrial Motions

Pretrial Motions

Dismissal Motions: Violations of Statutory Speedy Trial Rights 

Trial Within 30 or 45 Days

Penal Code § 1382 sets forth the statutory time rights for the accused to be brought to trial:
In custody: 30 days from day of arraignment

Out of Custody: 45 Days From Date of Arraignment

If a defendant is not ‘brought to trial’ within the time prescribed in section 1382 and...before trial challenges such failure, he is entitled to a dismissal without any showing of prejudice unless good cause justifies the delay.” (Rhinehart v. Municipal Court (1984); People v. Johnson (1980)).” Perryman v. Superior Court (People) (2006)

The prosecution bears the burden of showing good cause, and the fact that a witness will be on vacation on the date set for trial does not by itself constitute good cause. Baustert v. Superior Court (2005)

Good cause for a continuance was found in People v. Shane (2004), where the prosecution subpoenaed a witness four days before the date set for trial and the witness was unavailable.

Effect of Waiver and Subsequent Withdrawal of Waiver 

General time waivers are routinely made on behalf of out-of-custody defendants because it allows defense counsel more flexibility in calendaring matters and a greater opportunity to investigate and prepare a case; however, there may be strategic reasons for not waiving time, or for subsequently withdrawing a time waiver.

Penal Code § 1382(a)(3)(A) provides that if a general waiver is entered and is later withdrawn, a new 30-day time period (not 45 days) begins to run. Baustert v. Superior Court (People) (2005).

Penal Code § 1382(a)(3)(A) further specifies that a general time waiver can be withdrawn only “with proper notice to all parties.” In Arias v. Superior Court (People) (2008)

However, soon after the Arias decision sent a shockwave through California trial courts, P.C. § 1382(a)(3)(A) was amended to mandate that any subsequent withdrawal of time waiver be done “in open court” with notice to all parties.

Penal Code § 1382(a)(3)(B) provides that a consent, express or implied, to a trial date beyond the applicable 30-or-45-day period requires a trial to begin within 10 days of the end of the period unless the accused makes a general time waiver (i.e., he does not limit his time waiver to the date set for trial).

Reading PC §§ 1382(a)(3)(A) and (B) together, if there is no general waiver or it is withdrawn, and there is no consent to a date outside of the applicable time period, there is no 10-day period following the 30- or 45-day period. Trial must begin by the 30th or 45th day, or the case shall be dismissed absent a showing of good cause. This was the situation in Arias, supra (defendant having withdrawn his time waiver and there being no good cause for a continuance).

10 Days More After 30 or 45; Effect of Waiving

If the trial does not begin within the appropriate 30- or 45-day time period, it may sometimes be continued or trailed for up to 10 additional days (Stephens v. Municipal Court (1986)

But note that two cases are in direct conflict about whether or not an objection is necessary to oppose any continuance within the 10-day period (Stephens—Must object and Bryant v. Superior Cour—Objection not necessary).

Constitutional Speedy Trial Rights in California DUI Cases 

Constitutional speedy trial rights (U.S. Const., 6th Amendment, Cal. Const., Art. I, § 15) generally relate to the time period between the filing of the charges and the defendant’s arraignment, when statutory rights take over.

California’s constitutional speedy trial right was the subject of the decision in Serna v. Superior Court.

 Dismissal Motions Based on Prosecutorial Vindictiveness 


“[S]o long as a prosecutor has probable cause to believe the accused has committed a criminal offense…the decision whether or not to prosecute, and what charges to file…generally rests entirely in his discretion.” Bordenkircher v. Hayes (1978).

However, a “prosecutor violates due process when he seeks additional charges solely to punish a defendant for exercising a constitutional or statutory right.” United States v. Hernandez-Herrera (9th Cir. 2001)
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