What are Demurrers in Criminal Cases?

When someone is charged with a crime, a criminal complaint, information, or indictment will be filed in court. These pleadings are formal charging documents, which lists the specific felony or misdemeanor crime(s) and allegations. What happens if the information contained in these pleadings is wrong or the prosecution made a mistake? A demurrer in a criminal case is a way to challenge the sufficiency of the criminal pleading. It is limited to defects that may appear on the face of the pleading and is only concerning issues of law. Typically, a demurrer must be raised before the defendant enters a plea and is arraigned. (California Penal Code section 1004.) However, issues concerning a violation of the statute of limitations can be raised at any time.

What Types of Challenges Can Be Made By Demurrer?

Demurrers are governed by California Penal Code section 1004. Pursuant to California Penal Code section 1004, there are five situations in which a defendant can demur to the accusatory pleading:

1. Lack of Jurisdiction, Penal Code section 1004(1) – A demurrer is the proper way to challenge the sufficiency of the pleading on the grounds that the Court lacks jurisdiction over the offense. The court may lack jurisdiction for a variety of reasons, such as the crime charged is unconstitutional, the charges were filed in the wrong court (improper venue), the alleged crime was committed outside of the court’s jurisdiction (such as in another county or state), or the statute of limitations has run.
2. Uncertainty Resulting in a Lack of Notice, Penal Code section 1004(2) – A demurrer is the proper way to challenge the pleading on the grounds that it lacks specificity and does not contain sufficient information about the alleged crime to give the defendant proper notice of what he or she is accused of.
3. Misjoinder, Penal Code section 1004(3) – A demurrer is the proper way to challenge a pleading that improperly contains or combines multiple charges.
4. No Crime is Actually Stated, Penal Code section 1004(4) – A demurrer is the proper way to challenge a pleading that does not actually state that the facts alleged do not constitute a crime. This could be due to several reasons, such as the crime listed is unconstitutional or the time period in which the crime is alleged to have occurred exceeds the statute of limitations.
5. Legal Justification or Bar to Prosecution. Penal Code section 1004(5) – A demurrer is the proper way to challenge a pleading when the pleading contains information that, if true, is either legally justified or prohibits prosecution.

When Must a Demurrer Be Made?

Penal Code section 1004 states that “The defendant may demur to the accusatory pleading at any time prior to the entry of a plea…” As such, a demurrer must be made at the time of arraignment, which is when the defendant typically enters a “not guilty” plea in answer to the complaint, or later time if the court allows.

How is a Demurrer Made?

Demurrers must be made in writing and must contain specific grounds for challenging the pleading. Depending on where the criminal case is filed, there may be specific rules and requirements for filing, serving, and litigating a demurrer.

What Happens if the Court Sustains the Demurrer?

If the trial court agrees with the defendant and sustains the demurrer, the matter could be dismissed. However, pursuant to California Penal Code section 1007, In circumstances where the defect in the pleading can be remedied, the Court must permit the prosecutor to file an amended pleading within a set amount of time.

If you or a family member has been charged with a crime and is facing felony or misdemeanor charges out of Los Angeles, Orange County, Riverside County, San Bernardino County, or Ventura County, it is imperative that you hire the best attorney that you can to explore all options available, including examining and potentially challenging the charging documents with a demurrer. Attorney Michael Kraut has extensive experience litigating demurrers and knows how to effectively challenge deficiencies in the prosecution’s filings and secure the absolute best result.

For more information about demurrers, and to schedule your free consultation, contact attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at (888) 334-6344 or (323) 464-6453.

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