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Cleaning up your record to get a CDL

Under the law AB-60, which took effect January 1, 2015, it is now possible for undocumented persons who can prove their identities, establish California residency and comply with other requirements, to receive a California driver license ("CDL"). Many of my clients are taking advantage of this excellent opportunity.

One rather common problem that prevents the DMV from issuing a CDL is the existence of an outstanding arrest warrant. These warrants are often very old - sometimes even as old as 30 years or more. Oftentimes, these arrest warrants relate to criminal charges like a DUI, and for whatever reason the accused never made it to court to face the charges. In such "failure to appear" cases, the judge issues an arrest warrant that law enforcement is supposed to serve by arresting the accused. Very often, however, law enforcement never tries to serve the warrant on the accused and everybody just "forgets" about the charges.

Except for the DMV, of course. The DMV will require that the person asking for the CDL first go to court, clear up the arrest warrant, and otherwise deal with the charges.

I have successfully dealt with many such cases.

Very often, it is possible for the court to dismiss the case altogether, depending on a number of factors. That's because everybody accused of a crime has a right under the Sixth Amendment of the United States Constitution to a "speedy trial." Therefore, if the case is very old, a legal presumption arises that the accused's Constitutional right to a "speedy trial" has been violated and that the case should therefore be dismissed completely.

In these kinds of cases I would normally file a so-called "Serna Motion", asking the court to dismiss the case because it is so old that it wouldn't be Constitutional to make the accused face the charges.

The court will base its decision in the Serna Motion on whose "fault" it was that the accused never appeared in court. So, the more I can show that my client was easy to find and that law enforcement simply did not do its job in serving the warrant, then the better the chance that the court will dismiss the case. And that is a very nice result for my client, since legally it's just as if the charges had never been filed.

Example: Alfredo was arrested for a DUI on March 15, 2000. Alfredo was booked and released at the time of his arrest. Upon his release Alfredo signed a "promise to appear" in court on April 15, 2000. Alfredo went to court on that date but no charges had been filed. The District Attorney finally filed charges on May 15, 2000 and sent a letter to Alfredo at the address in his police report informing Alfredo of a new court date of June 15, 2000. However, Alfredo had already moved to another address and didn't get the letter. Alfredo just assumed that the matter had been dropped. When Alfredo doesn't appear in court on June 15, 2000 the judge issues a warrant for Alfredo's arrest. The Sheriff never tries to arrest Alfredo thereafter. On March 15, 2015 - or 15 years after the date of his arrest for the DUI - Alfredo was told by the DMV that he couldn't have a CDL until he clears up the arrest warrant and deals with the DUI.

This is a rather typical case. Given the 15 year delay in prosecuting the case, I would file a Serna Motion to ask the court to dismiss the charges. The court will base its decision on how easily law enforcement could have located Alfredo and served the warrant.

On the one hand, let's assume that Alfredo was really easy to find. He had a number listed in the phone book, filed taxes every year, paid utilities in his own name, worked at the same job since his arrest, had signed up for MediCal at one point, and even received a couple of parking tickets and paid them at court. In that case, the fault of the delay would clearly by on the government, and the court would very probably dismiss the case.

On the other hand, let's assume that Alfredo left California and moved to Tijuana where he lived under an assumed name, that he never paid taxes or utilities or received government benefits or had any other contacts with the judicial system. In that case, the court would find that it's Alfredo's fault that the case was delayed so long, and the court would likely not dismiss the case.

Of course, most cases aren't that clear, and so in order to get the case dismissed it's important to file the best Serna Motion possible. I work closely with my clients to develop the most powerful Serna Motion possible.

Again, if the case is dismissed, it's like it never happened.

What happens if the court does not grant the Serna Motion? Then we deal with the case like any other case. We gather all the evidence, file any other motions that may apply, and put on the strongest defense possible, including fighting the charges all the way through trial by jury. That said, quite often when the case is very old the District Attorney and the court will want to settle the case on some reasonable terms, usually because one of their police witnesses is no longer available.

I have the knowledge and experience to get my clients the best result possible.

* These blog posts do not constitute legal advice.

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