Can My Case Be Dismissed for Delay? Speedy Trial Rights in California Under Penal Code 1382

Q: What happens if I waive time?

The statutory clock stops until the waiver is withdrawn. A general waiver suspends the Penal Code section 1382 deadlines, and once it is withdrawn the prosecution again has 60 days in a felony case and 30 or 45 days in a misdemeanor case. A waiver to a specific date requires trial within 10 days after that date. Waiving time is often strategically correct, but it should be a decision rather than a reflex.

Q: Can the DA refile after a speedy trial dismissal?

Often yes for a felony, usually not for a misdemeanor. Penal Code section 1387 generally allows one refiling of a felony after a dismissal but bars refiling of most misdemeanors after a single dismissal. Our guide on refiling charges after a dismissal explains the exceptions.

Daniel Gramling, Esq.

9 minutes ago

11 min read

Speedy Trial Rights in California: The Short Version

The short answer: yes, a California criminal case can be dismissed for delay, but only when the delay violates a specific statutory deadline or a constitutional right and the defense raises it correctly. Penal Code section 1382 sets the main deadlines: a misdemeanor must be brought to trial within 30 days of arraignment if you are in custody or 45 days if you are out of custody, and a felony must be brought to trial within 60 days of arraignment on the information. If the prosecution misses the deadline without good cause and you have not waived time, the court must dismiss. Our criminal defense practice raises these deadlines in cases at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, and the Clara Shortridge Foltz Criminal Justice Center in Los Angeles.

Most defendants give the right away without knowing it. At nearly every arraignment and pretrial conference, the court asks whether the defendant waives time, and most people say yes because their lawyer needs time to prepare. That is often the right call, but it means the clock stops, and a defendant who later complains about delay has usually consented to it. This guide explains the deadlines, what a waiver does, when delay before charges are filed can lead to dismissal, and how to decide whether to hold the prosecution to the clock.

Where the Right Comes From

Three sources. The Sixth Amendment to the United States Constitution guarantees a speedy trial, and Article I, section 15 of the California Constitution guarantees the same right under state law. Penal Code section 686 restates the right, and Penal Code section 1382 turns it into concrete deadlines with a dismissal remedy. The statutory right is the easiest to enforce because it does not require proof that the delay hurt you; a missed deadline without good cause or waiver is enough.

The federal and state constitutional rights work differently. Under Barker v. Wingo (1972) 407 U.S. 514, a federal speedy trial claim is judged by balancing the length of the delay, the reason for it, whether the defendant asserted the right, and the prejudice to the defendant. In Doggett v. United States (1992) 505 U.S. 647, the Supreme Court held that an extraordinary delay caused by government negligence can be presumed prejudicial. The federal right attaches at arrest or formal charge, while the California right attaches earlier, when the complaint is filed.

When the California right attaches. In People v. Martinez (2000) 22 Cal.4th 750, the California Supreme Court held that the state constitutional speedy trial right attaches when a felony complaint is filed, but that a defendant claiming a violation of that right before the federal right attaches must show actual prejudice, which the court then weighs against the justification for the delay. For misdemeanors, Serna v. Superior Court (1985) 40 Cal.3d 239 applies a more favorable rule described below.

The Penal Code 1382 Deadlines

Misdemeanors and infractions. Under Penal Code section 1382, subdivision (a)(3), a misdemeanor or infraction case must be brought to trial within 30 days after arraignment or entry of plea if the defendant is in custody at that time, and within 45 days if the defendant is out of custody. If the defendant has waived time and the waiver is later withdrawn, or if the defendant agrees to a trial date beyond the deadline, the trial must begin within 10 days after the agreed date. These are calendar days, not court days.

Felonies. Under Penal Code section 1382, subdivision (a)(2), a felony case must be brought to trial within 60 days after arraignment on the information or indictment. Penal Code section 1382, subdivision (a)(1), separately requires the prosecution to file the information within 15 days after the defendant is held to answer at the preliminary hearing, and Penal Code section 1049.5 echoes the 60-day trial rule. Before that, Penal Code section 859b requires a preliminary hearing within 10 court days of the felony arraignment when the defendant is in custody and has not waived time, and within 60 days in any event unless the defendant personally waives. Our guide on what actually happens at a preliminary hearing explains the 859b deadlines.

What "brought to trial" means. A case is brought to trial when a jury panel is sworn for voir dire or, in a court trial, when the first witness is sworn, and the court's practice in Riverside, San Bernardino, and Los Angeles County is to send the case out for trial on or before the last day. In busy courthouses the case may trail for several days within the statutory period while a courtroom opens up. The defense should state on the record that it is not waiving time, because silence when a date beyond the deadline is set is treated as consent.

Time Waivers: What You Are Agreeing To

A general time waiver stops the clock entirely. When a defendant enters a general time waiver, the statutory deadlines no longer apply until the waiver is withdrawn. Once it is withdrawn, the prosecution has 60 days in a felony case, and 30 or 45 days in a misdemeanor case, to bring the case to trial. Many defense lawyers enter a general waiver at the start of a case to allow time for discovery under Penal Code section 1054.1, investigation, and motions, and withdraw it later when the defense is ready and delay no longer helps.

A limited waiver sets a specific date. A defendant can instead waive time to a specific date, which keeps pressure on the prosecution and the court. Under Penal Code section 1382 the trial must then begin within 10 days after that date. The choice between a general waiver and a limited waiver is strategic, and it should be discussed before every arraignment and pretrial conference rather than answered reflexively. Our guides on what happens at arraignment in Riverside County and on the pretrial conference describe when the question comes up.

When refusing to waive time helps. An in-custody defendant with a weak prosecution case, a missing witness, or a crime lab backlog often benefits from holding the prosecution to the 30-day or 60-day clock. A prosecutor who cannot locate a complaining witness or obtain a blood result in time must either dismiss, try the case without the evidence, or ask for a continuance that the judge may deny. Our guide on what makes a criminal case weak explains which cases are good candidates for this approach.

When waiving time helps. A defendant who is out of custody and facing a strong case often benefits from time, because witnesses move, memories fade, the defense can complete its own investigation, and the defendant can build a record of treatment, employment, or restitution that improves an offer. Diversion applications under Penal Code section 1001.95 or Penal Code section 1001.36 also take time to prepare. The decision depends on which side delay helps more.

Good Cause: When the Prosecution Can Get More Time

The continuance rules. Penal Code section 1050 requires a party seeking a continuance to file a written motion with at least two court days' notice and to show good cause, and the statute states that the court should give criminal cases precedence over civil matters. Routine reasons such as a prosecutor's vacation or general caseload are usually not good cause when the defendant objects. An unavailable material witness, a newly discovered need for testing, or the defendant's own motions are more likely to qualify.

Court congestion and defense counsel's schedule. In People v. Johnson (1980) 26 Cal.3d 557, the California Supreme Court held that an in-custody defendant who objects to delay cannot be forced to accept a continuance based solely on appointed counsel's conflicting obligations in other cases. Chronic court congestion also does not automatically excuse the prosecution, although courts have treated true emergencies differently. During the pandemic, statewide emergency orders temporarily extended the Penal Code section 1382 deadlines, which is why older advice about the clock may not match what happened in 2020 and 2021.

Delay caused by the defendant does not count. Time runs from the arraignment, but it is tolled by the defendant's own continuances, by a bench warrant period after a missed court date, and by competency proceedings. A defendant who fails to appear and then returns on a warrant has restarted the clock, not run it out. Our guide on what happens if you miss court explains how a bench warrant affects the case.

Delay Before Arrest: Serna Motions and Due Process

The misdemeanor Serna rule. In Serna v. Superior Court (1985) 40 Cal.3d 239, the California Supreme Court held that the state speedy trial right in a misdemeanor case attaches when the complaint is filed, and that a delay of more than one year between the filing of the complaint and the defendant's arrest or arraignment is presumptively prejudicial. The burden then shifts to the prosecution to justify the delay, usually by showing reasonable diligence in trying to find the defendant. A Serna motion is common in old DUI and misdemeanor warrant cases, where a complaint was filed years ago and the defendant learns about it during a traffic stop in Fontana or at a job background check.

Felony pre-arrest delay. For felonies, a defendant complaining about delay between the crime and the filing of charges, or between the filing and the arrest, must show actual prejudice under People v. Martinez (2000) 22 Cal.4th 750 and the due process standard described in People v. Nelson (2008) 43 Cal.4th 1242. In Nelson, the court explained that the trial court balances the prejudice shown against the prosecution's justification, and that negligent delay weighs less heavily than deliberate delay but can still require dismissal when the prejudice is strong. Lost witnesses, destroyed surveillance video, and faded memories are the typical forms of prejudice.

The statute of limitations is a separate limit. Speedy trial rules govern delay after charges are filed or after arrest, while the statute of limitations in Penal Code section 801 and Penal Code section 802 governs how long the prosecution has to file in the first place. Our guide on how long the DA has to file charges covers the filing deadlines, and the two doctrines often work together in a cold case.

How a Speedy Trial Motion Works in Practice

Object on the record. The first step is to refuse to waive time or to withdraw an existing waiver, and to object when the court sets any date beyond the statutory deadline. The objection must be made when the date is set, not after the fact. A defense lawyer in a Riverside County courtroom, at the San Bernardino Justice Center, or at the Victorville courthouse will typically state that the defendant is not waiving time and ask the clerk to calculate the last day.

File the motion to dismiss on or after the last day. When the prosecution has not brought the case to trial by the deadline, the defense moves to dismiss under Penal Code section 1382. The motion is usually made orally on the last day or in writing shortly after, and the court must grant it unless the prosecution shows good cause for the delay. No showing of prejudice is required for the statutory motion.

Refiling after a dismissal. A dismissal under Penal Code section 1382 is not always the end. Under Penal Code section 1387, a felony that has been dismissed once can generally be refiled one time, while a misdemeanor that has been dismissed usually cannot be refiled, subject to exceptions for certain offenses and for dismissals caused by the defendant. Our guide on refiling charges after a dismissal explains the two-dismissal rule and why a speedy trial dismissal of a felony often leads to a second filing.

Prisoners and out-of-state defendants. A person serving a sentence in a California jail or prison who has other charges pending can demand under Penal Code section 1381 that the pending case be brought to trial within 90 days, and a failure to do so requires dismissal. A person held in another state can invoke the Interstate Agreement on Detainers under Penal Code section 1389, which carries its own 180-day period. These demands must be made in writing and served correctly, and a lawyer should prepare them.

Mistakes That Forfeit the Right

Agreeing to a date without objecting. Courts treat a defendant's agreement to a trial date beyond the deadline, or silence when the date is set, as consent. The right is not self-executing, and a defendant who sat through a year of continuances without objecting will not win a speedy trial motion.

Missing court. A bench warrant under Penal Code section 978.5 stops the clock and gives the prosecution a ready explanation for every month of delay. It also converts a defendant with leverage into a defendant with a new charge under Penal Code section 1320.

Refusing to waive time without a plan. Holding the prosecution to the clock is only a tactic when the defense is ready for trial on the last day. A defendant who refuses to waive time and then needs a continuance for discovery has handed the time back and lost credibility with the judge. Our guides on how a criminal jury trial works and how long a criminal case takes explain what readiness requires.

Waiting for a lawyer. A defendant who appears alone at arraignment and asks for time to hire counsel has usually waived time to the next date. That is often unavoidable, but a lawyer retained before the first appearance can decide the waiver question deliberately. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for arraignment-stage representation in the Inland Empire, the High Desert, Los Angeles County, and Orange County.

Frequently Asked Questions

How long does the prosecution have to bring me to trial in California?

Thirty or 45 days for a misdemeanor and 60 days for a felony. Under Penal Code section 1382, a misdemeanor must be tried within 30 days of arraignment if you are in custody and 45 days if you are out of custody, and a felony must be tried within 60 days of arraignment on the information. The deadlines apply only if you have not waived time, and good cause can extend them.

What happens if I waive time?

The statutory clock stops until the waiver is withdrawn. A general waiver suspends the Penal Code section 1382 deadlines, and once it is withdrawn the prosecution again has 60 days in a felony case and 30 or 45 days in a misdemeanor case. A waiver to a specific date requires trial within 10 days after that date. Waiving time is often strategically correct, but it should be a decision rather than a reflex.

What is a Serna motion?

A motion to dismiss a misdemeanor for delay between the filing of the complaint and your arrest. Under Serna v. Superior Court (1985) 40 Cal.3d 239, a delay of more than one year is presumptively prejudicial, and the prosecution must show it acted with reasonable diligence to find you. These motions are common in old warrant cases discovered years later.

Can the DA refile after a speedy trial dismissal?

Often yes for a felony, usually not for a misdemeanor. Penal Code section 1387 generally allows one refiling of a felony after a dismissal but bars refiling of most misdemeanors after a single dismissal. Our guide on refiling charges after a dismissal explains the exceptions.

Do I have to prove the delay hurt my case?

Not for a statutory motion, but yes for most constitutional claims. A missed Penal Code section 1382 deadline requires dismissal without any showing of prejudice. A claim based on delay before arrest or before the federal right attached requires a showing of actual prejudice under People v. Martinez (2000) 22 Cal.4th 750, except in the misdemeanor Serna situation where prejudice is presumed after one year.

Should I refuse to waive time?

Only with a plan and a lawyer who is ready to try the case. Refusing to waive time can force a dismissal when the prosecution's witnesses or lab results are not ready, but it also forces the defense to be ready. Our guide on whether to take a plea deal explains how trial readiness affects the offers you receive.

Talk to a Criminal Defense Lawyer About Delay in Your Case

Gramling Law Group defends clients in criminal cases in Riverside, San Bernardino, Victorville, Hesperia, Fontana, Rancho Cucamonga, Moreno Valley, Murrieta, Pomona, Van Nuys, Long Beach, Santa Ana, and Los Angeles at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Victorville courthouse, the Rancho Cucamonga courthouse, the Clara Shortridge Foltz Criminal Justice Center, the Van Nuys courthouse, and the Central Justice Center, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options that start at the arraignment, where the time waiver decision is made. Call (909) 654-4575 or contact us through this website for a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.