1381 Demand – Get your California DUI Dismissed with a PC 1381 Demand

1381 demandCalifornia 1381 Demand

The 1381 demand under the California Penal Code is a powerful tool for the defense when used properly.   The idea behind this law is that if you are serving time in custody for one offense, you have the right to demand a speedy trial on all other cases pending against you.

Once a PC 1381 demand is properly served, the District Attorney has 90 days to bring you to trial, or the case must be dismissed.   If you draft an effective PC 1381 demand, serve the demand properly, and follow up to ensure that the law is followed, you can have your DUI case dismissed in any California court.

Who Qualifies for a 1381 Demand?

Not everyone can file a PC 1381 demand for dismissal.   In order to qualify for relief under this section of the California Penal Code you must meet two basic criteria.  First, you must be in custody serving a sentence of at least 90 days.  Second, you must have an open criminal case pending against you.  Let’s look at each of these more closely.

Sentenced Prisoner – Serving a sentence of 90 days or more

The key here is making sure that you are a SENTENCED prisoner.  You do not qualify if you are being held on a pending case.  Before you can qualify to file a PC 1381 demand you must resolve your case and be sentenced.  So if you are being held on bail, waiting for trial, etc, it’s too early for you to file an effective demand.

Open Criminal Case

Remember that the PC 1381 demand is based on your right to a speedy trial.   You are essentially telling the DA, “I’m here in jail, if you want me come and get me!”  This means that you must you have at least one open criminal case somewhere in California on which to file the demand.

If the case on which you are seeking relief is a traffic infraction, a probation violation, or any other type of matter besides an open criminal charge, you will not qualify – because the right to a speedy jury trial only attaches to open criminal charges.   There is no limitation to the number of demands that can be filed.  So if you have cases pending in multiple courts, you can and should file separate demands on each case.

How to Write a Proper PC 1381 Demand

If your PC 1381 demand is not properly prepared, it will not result in a dismissal.   As you can imagine, District Attorneys and Judges are not very fond of dismissing criminal cases.   The vast majority of PC 1381 demands filed in pro per are ineffective because they are not properly drafted.  Once the demand comes to court, the District Attorney can simply ignore it or object to the form of the improper demand and the charges will remain.

Example of improper demands may include

  • demand fails to identify the prisoner
  • demand fails to identify the case on which the prisoner is currently sentenced
  • demand fails to demand trial, instead the demand requests dismissal or continuance
  • demand fails to identify the case seeking to be dismissed
  • demand is sent to the wrong person or there is no proof of service (see below)

An effective PC 1381 demand will include the following

  • identity of the prisoner, name, date of birth, booking number, penal institution where housed
  • the case number and length of sentence (at least 90 days) that prisoner is currently serving time on
  • a DEMAND for trial within 90 days on the open case identifying the case sought to be dismissed

How to Serve a PC 1381 Demand

If you are eligible for relief, and you have drafted a proper demand, you could still end up with trouble if you don’t properly serve the PC 1381 demand.   Far too often, a prisoner will send a demand and it will get denied because the DA claims they never received it, or they didn’t receive it on time.

This problem usually results from sending the demand to the wrong place, or failing to have proof of service.   Don’t write a letter to the Judge, the court clerk, or the police.   The demand must go the prosecuting agency that filed the charge.  99% of the time this will be the District Attorney for the county where the crime was committed.

In limited circumstances, some crimes are charged by the city attorney’s office, or other local prosecutors.

Once you know who to serve with your demand, make sure that they receive it and you can prove it.    This means that it is NOT a good idea to send a PC 1381 demand in the mail.    To do it the right way, have someone on the outside personally serve the demand on the District Attorney’s office for the county where your open case is pending.

This means they will physical deliver the PC 1381 demand to the DA’s office, get it stamped and keep a conformed copy.   It is also a good idea to file a copy with the court clerk at the same time.

How to Follow up on a PC 1381 Demand

If you have followed all the steps above properly, you will either be transported to court to face the open charge within 90 days or the case will be dismissed.  If you were not transported, check the court docket in the court where you filed the demand 90 days after serving the PC 1381 demand.

If everything went properly, you will see that your case has been dismissed.  If the dismissal has not been entered, request to add the case on calendar and present the conformed copy of the PC 1381 demand.

Getting More Help with a PC 1381 Demand

If you have a family member, friend, or loved one in custody, the last thing you need is a delay in their release date.   The above article is designed to help you prepare and serve a good PC 1381 demand.   If you would like this process done for you by an experienced California criminal defense lawyer, feel free to give me a call at 800-797-8406, email me at attorneygallagher@gmail.com, or just click on the button below to submit your inquiry through this website.

By |2018-07-11T17:14:41+00:00February 3rd, 2018|

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