or hit and run,
they have the right to a speedy and public trial. This means that the DA cant
drag their feet when it comes to moving the case along. However, as an experienced
Orange County criminal defense attorney
I can tell you that it is not uncommon for the DA to take a long time before
filing the criminal complaint, especially in cases of petty theft (shoplifting), drug
possession, and other minor offenses. However, if the delay is not
justified, the defendant may be entitled to a dismissal of the charges.
criminal defense lawyers in Orange County know that the Sixth Amendment
to the United States Constitution, applied to the states through the Fourteenth
Amendment, provides, in part: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial …” The right to a speedy trial is
a “fundamental right granted to the accused and … the policy of the law since
the time of the promulgation of the Magna Carta and the Habeas Corpus Act.” Harris v. Municipal Court (1930) 209Cal.
The constitutional right to a speedy trial is triggered when a defendant
becomes “an accused.” Under the United States Constitution, a person becomes an
accused in a misdemeanor case on arrest for the charge, (be it DUI,
assault and battery, Domestic Battery or any other misdemeanor), or when a misdemeanor
complaint is filed, whichever occurs first. Serna
v. Superior Court (1985) 40 Cal.3d 239, 262; 219 Cal.Rptr. 420.
to the United States Constitution, applied to the states through the Fourteenth
Amendment, provides, in part: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial …” The right to a speedy trial is
a “fundamental right granted to the accused and … the policy of the law since
the time of the promulgation of the Magna Carta and the Habeas Corpus Act.” Harris v. Municipal Court (1930) 209
The constitutional right to a speedy trial is triggered when a defendant
becomes “an accused.” Under the United States Constitution, a person becomes an
accused in a misdemeanor case on arrest for the charge, (be it DUI,
assault and battery, Domestic Battery or any other misdemeanor), or when a misdemeanor
complaint is filed, whichever occurs first. Serna
v. Superior Court (1985) 40 Cal.3d 239, 262; 219 Cal.Rptr. 420.
If the delay in
prosecuting the defendant for domestic violence, hit and run or other
misdemeanor involved is less than one year, then the defendant’s Orange County
Domestic Violence Lawyer should
file a motion and the court should engage in a balancing process and include
consideration of: 1) the length of the delay; 2) the justification, if any, for
the delay; 3) defendant’s assertion of the right; and 4) prejudice, if any, to the defendant. (Barker v. Wingo, (1972) 407 U.S.
514, 530-532; 92 S.Ct. 2182.)
However, if the delay exceeds one year in a misdemeanor case, prejudice
is presumed, and if no justification is shown the case must be dismissed.
(Serna v. Superior Court, supra, 40 Cal.3d at p. 254.)
prosecuting the defendant for domestic violence, hit and run or other
misdemeanor involved is less than one year, then the defendant’s Orange County
Domestic Violence Lawyer should
file a motion and the court should engage in a balancing process and include
consideration of: 1) the length of the delay; 2) the justification, if any, for
the delay; 3) defendant’s assertion of the right; and 4) prejudice, if any, to the defendant. (Barker v. Wingo, (1972) 407 U.S.
514, 530-532; 92 S.Ct. 2182.)
However, if the delay exceeds one year in a misdemeanor case, prejudice
is presumed, and if no justification is shown the case must be dismissed.
(Serna v. Superior Court, supra, 40 Cal.3d at p. 254.)
So, for example, if you are arrested for misdemeanor DUI,
you are typically released either on your own recognizance or on bail with a
date to appear in court for your arraignment. But, as any Orange County DUI Attorney knows,
when the court date comes, the DA often has not yet filed the criminal
complaint in the case. Thus, when you or your criminal
defense lawyer show up for court, your name will NOT be on the calendar. If
this happens, you or your defense attorney should get a date stamped paper from
the DA’s office showing that you or your defense attorney showed up for the
original court date. The burden is then on the DA to notify you of a new court
date or to bring you before the judge on the new court date.
you are typically released either on your own recognizance or on bail with a
date to appear in court for your arraignment. But, as any Orange County DUI Attorney knows,
when the court date comes, the DA often has not yet filed the criminal
complaint in the case. Thus, when you or your criminal
defense lawyer show up for court, your name will NOT be on the calendar. If
this happens, you or your defense attorney should get a date stamped paper from
the DA’s office showing that you or your defense attorney showed up for the
original court date. The burden is then on the DA to notify you of a new court
date or to bring you before the judge on the new court date.
If there is substantial delay before the DA notifies you or
your criminal
defense attorney of a new date, then your lawyer should file a motion
asking the court to dismiss the charges because of the substantial delay. If
the delay is more than a year in a misdemeanor case, then you may be entitled
to a dismissal of the charges as a matter of law.
your criminal
defense attorney of a new date, then your lawyer should file a motion
asking the court to dismiss the charges because of the substantial delay. If
the delay is more than a year in a misdemeanor case, then you may be entitled
to a dismissal of the charges as a matter of law.
If you face criminal charges in the Orange County court,
call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
telephonic consultation with an experienced Orange County criminal defense
lawyer. You can also visit us at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.
call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
telephonic consultation with an experienced Orange County criminal defense
lawyer. You can also visit us at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.
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