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, including 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 it will 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 Sixth 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 Sixth Amendment, you do not necessarily have to prove that 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 Sixth Amendment attaches only with a “formal accusation,” which usually occurs after your preliminary hearing, when the DA re-files the charges through 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 caused by the delay against the government’s justification for it.

The longer the delay continues without justification, the less disadvantage or “prejudice” you may 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 have lost records proving your alibi—the government will have to show a very strong justification for the delay to avoid dismissal. In some cases, no excuse will be sufficient.

Federal due process also covers you in this situation and involves the same legal test.

Felony: Post-Indictment or Information

The Sixth Amendment technically covers this situation, but a motion to dismiss is very rare. You would typically be well aware that charges are pending at this point because your case would have already gone through the preliminary hearing phase or a grand jury indictment, although grand jury indictments are uncommon in California.

Statutory Speedy Trial and Preliminary Hearing Rights

Pleading “not guilty” to charges in court starts the clock on firm timelines for the government to begin the trial on your charges. A jury trial officially begins when the judge handling your trial swears in a group of jurors to begin the jury-selection process.

Misdemeanor Cases

In misdemeanor cases, your trial must begin within:

• 30 days after pleading “not guilty” if you are in custody.
• 45 days after pleading “not guilty” if you are out of custody.

If the government fails to begin your trial within these time limits without “good cause,” Penal Code section 1382(a)(3) requires dismissal of the case, and the charges cannot be refiled. “Good cause” is not simply an excuse. It is a technical legal term with strict requirements.

Felony Cases

In felony cases, additional rights and deadlines apply:

• You have the right to a speedy preliminary hearing within 10 court days of pleading “not guilty” to felony charges.
• If you are in custody, the judge must dismiss your case if the government violates this time limit without “good cause,” under Penal Code section 859b.
• After the preliminary hearing, the DA must re-file the charges in a felony “Information” within 15 days, or the case must be dismissed under Penal Code section 1382(a)(1).
• Your felony trial must begin within 60 days of pleading “not guilty” to the charges filed in the felony Information.

If the trial does not begin within the 60-day period, Penal Code section 1382(a)(2) mandates dismissal. However, the prosecution may, in most situations, refile a felony case one time following dismissal.

File a motion to suppress to argue that the police violated your Fourth Amendment rights during the investigation of your case. Visit our Know Your Rights page to learn what violations may have occurred.

If you win a motion to suppress, the DA cannot use evidence the police obtained as a result of violating your rights. This will often result in dismissal because the DA may no longer be able to prove the charges without the suppressed evidence.

Penal Code 1538.5 Suppression Motion

No Warrant

If the police had no warrant to detain, search, or arrest you, your suppression motion can be very simple. You only need to identify the evidence you want suppressed, such as “suspected methamphetamine” or a “cell phone,” and point out that the police did not have a warrant.

The burden then shifts to the DA to demonstrate that an exception to the Fourth Amendment’s warrant requirement applies. This motion must be brought under Penal Code section 1538.5.

Warrant

If the police had a warrant, you can still move to suppress evidence based on Fourth Amendment violations, but you will usually need to file a separate motion challenging the search warrant.

You may be able to avoid filing a more complicated motion when the warrant did not authorize a particular search. For example, if police had a warrant to search Mark’s house for guns but also took a saliva swab from his mouth to obtain a DNA comparison sample, Mark could move to suppress the DNA sample as a warrantless search. The search “exceeded the scope” of the valid warrant.

Typically, however, when police obtained a search warrant, your attorney will need to file one or more of the motions below to have evidence suppressed.

Motion to Quash Warrant

A motion to quash argues that the judge who issued the warrant in your case was wrong. Police obtain a warrant by submitting an affidavit to a judge that explains why they believe the place they want 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 sufficient “probable cause” to support the requested search or seizure. Visit 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 and argue that the judge should not have issued the warrant. You may argue that the police failed to present information amounting to probable cause or that the warrant contained other defects.

A warrant may also be defective because it is overbroad. For example, a warrant may establish probable cause to believe social media data contains conversations and photographs related to a crime committed one week earlier. If police request all of the suspect’s social media data for all time, the warrant may be overbroad and should be quashed.

Motion to Traverse and Quash Warrant

A motion to traverse and quash argues that police essentially tricked the judge into issuing the warrant by including misleading information or omitting facts that may have changed the judge’s decision.

These motions are commonly referred to as “Franks” motions, based on the United States Supreme Court decision in Franks v. Delaware (1978) 438 U.S. 154, which established the process for challenging a warrant on this basis.

First, the defense must present information showing that police intentionally or recklessly included false or misleading information or omitted important facts from the warrant affidavit.

The defense must also demonstrate that, without the misleading information or omission, the judge would have rejected the warrant because it lacked probable cause. If the defense cannot make this showing directly, it must explain why. If the defense satisfies this initial requirement, the court must grant a hearing on the motion to traverse.

At the hearing, both the defense and prosecution may present evidence. Published cases involving successful Franks litigation have included:

• Expert testimony that police could not have “smelled” methamphetamine coming from a locker. U.S. v. Johns (1988) 851 F.2d 1131.
• Alibi witness statements and proof that a police officer lied. People v. Broome (1988) 201 Cal.App.3d 1479.
• Evidence that officials in another jurisdiction had already determined that photographs in a child pornography investigation were not illegal, but that fact was omitted from the warrant application. United States v. Perkins (2017) 850 F.3d 1109.

At the end of the hearing, the judge decides whether police intentionally or recklessly included or omitted important facts in a misleading way.

If the judge finds that they did, the court adds the omitted facts or removes the misleading information and then determines whether the warrant still establishes probable cause. If it does not, the warrant must be quashed.

Luttenberger and Hobbs Motions

When a warrant affidavit is unsealed and the defense needs additional information about a confidential informant to prepare a motion to quash, the defense may file a Luttenberger motion to obtain information about the informant used in the police investigation.

More often, affidavits supporting warrant requests are sealed or partially sealed. In that situation, when police used a confidential informant, the defense may file a Hobbs motion.

A Hobbs motion requires the judge to review the full affidavit supporting the search warrant outside the presence of the defense. The judge may ask questions about the confidential informant’s credibility and investigate other issues affecting the reliability of the information included in the warrant affidavit.

If the court determines that the identity of a confidential informant or other privileged information should be disclosed, the prosecution may disclose the information to the defense and proceed to a hearing. Otherwise, the judge may grant the defense motion outright.

See more information about Hobbs motions under “Discovery Motions.”

Miranda

Miranda rights are not Fourth Amendment rights that are raised through a traditional suppression motion, but a Miranda violation may still result in evidence being suppressed.

Miranda rights arise from the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. Many people believe their case must be dismissed if police fail to read them their Miranda rights, but that is not automatically true.

When a person is under arrest, police must advise that person of their Miranda rights before questioning them. If they fail to do so, the DA usually cannot use the statements the person made during that questioning, unless the person later testifies at trial and says something different.

The exclusion of those statements is generally the only consequence of the Miranda violation. The case will not be dismissed unless the DA cannot prove the charges without the excluded statements.

A discovery motion is a legal argument asking the judge to order the DA to provide evidence. To successfully litigate your case, your attorney needs access to all of the evidence, both favorable and unfavorable.

The DA should provide this evidence without requiring a legal battle in court, but sometimes that does not happen and discovery motions become necessary. Although it is possible for a case to be dismissed through discovery litigation, these motions are typically filed to obtain evidence that may help you win at trial or successfully litigate another motion.

Motion to Compel

The Constitution requires the prosecution to provide “exculpatory” evidence, meaning evidence that may help your defense. This can include proof suggesting you are innocent or evidence that weakens the DA’s case, such as information showing that a prosecution witness lied.

Penal Code section 1054 also requires the DA to provide all relevant evidence obtained by police during the investigation of your case on an ongoing basis.

If the DA is not providing evidence you need to prepare for trial, your attorney can file a motion to compel and ask the court to order the prosecution to produce the discovery.

If the DA fails to comply with the court’s order, the judge may impose additional remedies, including:

• Telling the jury that the DA concealed evidence from you.
• Holding the DA in contempt.
• Excluding the evidence.
• Dismissing the case, although this is generally reserved for extreme situations.

Pitchess Motion

If police used excessive force against you, acted dishonestly, or otherwise violated your rights, you may have grounds to file a Pitchess motion.

Police personnel records are protected in California, although recent legislative changes have expanded public access to certain police disciplinary records. When someone files a complaint against an officer, or when a police department disciplines an officer, the agency must maintain those complaint and disciplinary records.

You may have a right to obtain limited information from these records if you provide the judge with evidence suggesting that the officer violated your rights. In some situations, your statement that an officer lied or used excessive force may be sufficient.

The DA also has a duty to notify you when an officer has potential misconduct evidence in their personnel file. A Pitchess motion must generally be filed to access the information in either situation.

Pitchess motions have more technical requirements than many other motions. Examples of circumstances that may support a Pitchess motion include:

• An officer used excessive force against you.
• An officer planted evidence.
• An officer lied in a police report.
• An officer intentionally failed to activate a body-worn camera.
• An officer lost or destroyed evidence.
• The DA informed you that an officer may have Pitchess material in their personnel file.

Obtaining Pitchess discovery can help your defense at trial. For example, if the jury learns that the officer who arrested you has a history of lying under oath, they may be less likely to believe the officer’s account of what occurred.

Similarly, if you are charged with resisting arrest, an officer’s prior history of using excessive force may strengthen your claim of self-defense.

Subpoena Duces Tecum

A subpoena duces tecum is not technically a discovery motion, but it is another important tool for obtaining evidence. If you believe a business, organization, or other third party has records that may help your defense, your attorney can subpoena those records.

The records are generally sent to the court, and the judge may release them to your attorney unless the DA or another party files a motion to quash.

Records that may be useful to subpoena include:

• Medical records showing that the alleged victim sustained no injuries.
• Prior police reports showing that the alleged victim made false accusations against someone else.
• Surveillance footage of the alleged crime.
• Credit card records showing that you made a purchase in another city at the time of the alleged offense, which may support an alibi.
• Social media records showing that the alleged victim threatened you or others, or possessed weapons, which may support a self-defense claim.

Motion to Quash

Filing a motion to quash is the proper legal method for objecting to the release of subpoenaed records. DAs may sometimes object informally in court, but an objection alone is generally not enough to prevent a party from receiving subpoenaed records.

If the DA files a motion to quash to block you from receiving records, the judge will balance seven factors commonly referred to as the “Touchstone” factors to determine whether you are entitled to the records.

The same legal test applies when the DA subpoenas your records and you file a motion to quash in response.

If the DA has subpoenaed records the government has no legal right to review, such as privileged therapy records, the court must quash the subpoena and prevent disclosure of the protected information.

Diversion is one of the best ways to resolve a criminal case without the risks of going to trial. If you successfully complete an approved diversion program, your charges may be dismissed. California offers several types of diversion programs, depending on the nature of the offense and the individual's circumstances.

Judicial Diversion (Penal Code § 1001.95)

Judicial diversion is available for many misdemeanor offenses, although certain crimes—such as domestic violence and many sex offenses—are excluded. Diversion can last for up to two years but is often granted for a shorter period.

The court may require community service, counseling, educational classes related to the offense, stay-away orders, or other conditions. You do not plead guilty to participate. If you successfully complete the program, your case is dismissed.

Mental Health Diversion (Penal Code § 1001.36)

Mental health diversion is available even in many serious and violent felony cases. Only a limited number of offenses—including murder, building a bomb, and most serious sex offenses—are excluded.

This diversion is available before entering a plea, meaning you do not have to admit guilt to participate. You must have a qualifying mental health diagnosis, which may include conditions such as depression, bipolar disorder, schizophrenia, alcoholism, or other recognized mental health disorders.

If you successfully complete the required treatment and diversion terms, your case will be dismissed.

Developmental Disability Diversion (Penal Code § 1001.20)

This program operates similarly to Mental Health Diversion but is designed for individuals with diagnosed developmental disabilities rather than mental health disorders. Successful completion of the diversion program results in dismissal of the criminal case.

Drug Diversion (Penal Code § 1000)

First-time offenders charged with simple possession of most controlled substances may qualify for Drug Diversion under Penal Code section 1000.

You do not plead guilty to participate. If you successfully complete the required treatment program and satisfy all diversion conditions, your charges will be dismissed.

Drug diversion has become increasingly important because, under Proposition 36 (2024), certain repeat drug possession offenses may now be prosecuted as felonies.

Military Diversion (Penal Code § 1001.80)

Military Diversion is available to veterans and current or former members of the United States military charged with most misdemeanor offenses and many felony offenses.

Excluded felonies include homicide and most sex offenses.

For misdemeanor cases, service members are not required to show that the offense was connected to a mental health condition or substance abuse resulting from military service. For felony cases, however, that connection must generally be established.

Juvenile Diversion Programs

Diversion programs are available for many juvenile offenses and provide young people with an opportunity to avoid formal court proceedings. Eligibility depends on the nature of the offense and the individual circumstances of the case.

While many juveniles qualify, those charged with particularly serious offenses may not be considered suitable candidates for diversion.

Kellett Motion

If you have already been prosecuted for one offense and the DA later files a new, related case, you may have grounds for a Kellett motion to dismiss.

Under Kellett (the California court case establishing this rule), when the prosecution knows—or reasonably should know—of multiple offenses arising from the same act, course of conduct, or overlapping evidence, all of those charges must generally be prosecuted together in a single proceeding.

If the DA fails to bring all related offenses in the same case, you may have a basis to dismiss the later-filed charges.

For example, if someone pleads guilty to a DUI and the prosecution later files an assault charge based on the allegation that the person intentionally rammed another vehicle during the same incident, the defendant may have grounds for a Kellett motion if the prosecution knew or should have known about the assault allegations when the DUI case was resolved.

Mental Incompetence

Under Penal Code section 1368, every person charged with a criminal offense must be mentally competent to stand trial. This means the individual must understand the nature of the criminal proceedings and be able to assist their attorney in preparing a defense.

If there is reason to believe that a defendant is not mentally competent, either the defense attorney or the court may declare a doubt regarding competency. Once that occurs, the criminal proceedings are suspended while the court appoints a qualified mental health professional to evaluate the defendant.

The evaluator determines whether the individual is currently competent to stand trial and, if not, whether treatment is likely to restore competency.

If the defendant cannot regain competency within the time allowed by law—which varies depending on the charges—the criminal case must be dismissed. Both the defense and the prosecution have the right to request a competency trial before the court makes its final determination.

Penal Code Section 1385 – Interest of Justice Dismissal

A request under Penal Code section 1385 asks the court to dismiss a criminal charge or sentencing enhancement because doing so would be in the interests of justice.

Judges have broad discretion under section 1385, but their primary consideration is whether dismissal would result in a fair and just outcome under the circumstances of the case.

A section 1385 motion may be appropriate when a defendant technically violated the law but acted without criminal intent or reasonably believed their conduct was lawful.

Section 1385 is also commonly used to dismiss sentencing enhancements that would otherwise result in an excessively harsh punishment.

For example, a defendant with prior "strike" convictions who steals a box of sports drinks while struggling with drug addiction could potentially face a life sentence under California's Three Strikes law. In an appropriate case, the judge may dismiss one or more strike enhancements under Penal Code section 1385 to impose a sentence that is more consistent with the interests of justice.

In the vast majority of felony cases, you will have a preliminary hearing, often called a "prelim," before your case proceeds to trial. The preliminary hearing serves as a preview of the prosecution's evidence. After hearing that evidence, the judge decides whether the DA has presented enough evidence for the case to move forward.

Your attorney can make several legal arguments at the preliminary hearing to seek dismissal or reduction of the charges, including:

• Insufficient Evidence: The DA failed to present enough evidence to support one, some, or all of the criminal charges.
• Affirmative Defenses: The evidence shows you had a legally recognized justification or excuse for your actions.
• Fourth Amendment Violations: Your attorney can litigate suppression issues by arguing that police violated your constitutional rights during the investigation.
• Corpus Delicti: A person cannot be convicted based solely on their own statements without independent evidence establishing that a crime actually occurred.
• Penal Code Section 17(b): The judge may reduce a "wobbler" felony offense to a misdemeanor if the court believes misdemeanor treatment is more appropriate.

If the judge finds that the prosecution presented sufficient evidence, you will be "held to answer", and the case will proceed. The DA will then file a document called an Information, which formally lists the felony charges that will move forward toward trial.

In some cases, however, the DA may decide not to file the Information after the preliminary hearing, resulting in dismissal of the case. In other situations, the prosecution may choose to file misdemeanor charges instead of felony charges.

995 Motion

If the DA files felony charges following the preliminary hearing, your attorney may file a Penal Code section 995 motion, arguing that the judge should not have held you to answer.

A 995 motion may raise many of the same issues argued during the preliminary hearing, including:

• Insufficient evidence.
• Affirmative defenses.
• Fourth Amendment violations.
• Corpus Delicti issues.

Additional grounds may also arise after the preliminary hearing. For example, if you discover that the DA withheld exculpatory evidence, your attorney may file a 995 motion seeking dismissal. Other potential issues include the preliminary hearing judge improperly refusing to allow defense witnesses or evidence, or relying on evidence that was obtained illegally.

If the court grants the 995 motion, the felony charges may be dismissed, providing another opportunity to resolve the case before trial.