A demurrer may be filed when the accusatory pleading fails to contain allegations of fact which constitute a public offense or when the complaint contains matter which would constitute a legal bar to prosecution. (Pen. Code § 1004.) A demurrer may be filed at the arraignment or such other time as allowed by the court. (Pen. Code § 1003.) Upon the filing of a demurrer, argument and objection "must be heard immediately, unless for exceptional cause shown, the court shall grant a continuance. Such continuance shall be for no longer time than the ends of justice require, and the court shall enter in the minutes the facts requiring it." (Pen. Code § 1006.)

In criminal proceedings, a demurrer is permitted at any "time as may be allowed to the defendant for that purpose." (Pen. Code § 1003.) "The defendant may demur to the accusatory pleading . . . when it appears upon the face thereof . . . [¶] "That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution." (Pen. Code, § 1004.)

Below is an example of a winning demurrer:

Penal Code § 802 sets forth a time period after the offense is committed for commencement of prosecution in misdemeanor actions, with some notable exceptions. Subsections (b), (c), or (d) relate to the Business and Professions Code and are not applicable here.

In the instant case, the Complaint alleges acts that allegedly occurred "on or about November 2, 2002," nearly three years before the Complaint was filed on August 31, 2005. Very clearly, the act on November 2, 2002, whether true or not, is not prosecutable under the applicable statute of limitations. Such a prosecution is contrary to California law and in violate of the defendant's due process rights.

On the face of the Complaint, the statute of limitations has run and the alleged act(s) are no longer prosecutable. Penal Code section 1004, subdivision 5, and the Due Process requirements of the Federal and State Constitutions require that the instant plea be entered and a demurrer granted as to Count I.

In light of the above-identified statutory and Constitutional defects evident on the face of the pleadings, Demurring Party respectfully requests this Court sustain the instant demurrer without leave to amend and dismiss the Complaint.

While the above is merely an example, a demurrer is a powerful tool that must be in a criminal defense lawyer's arsenal. Mr. Bruno evaluates every case for all possible legal advantages and motions that may be filed in your case. While this may seem routine or expected, it is not commonplace with every lawyer. A lawyer must first have a vast knowledge of the law in order to determine if such a motion will lie in your case. Mr. Bruno has that knowledge and the will and determination to file the necessary motions that may win your case.

Your rights are important to us at the Law Offices of Keith J. Bruno. If you have been charged with a crime and would like to know more about whether or not a demurrer is appropriate in your case, contact the criminal defense firm of The Law Offices of Keith J. Bruno. We offer a free face-to-face consultation and can work out a payment plan in most situations.

The Santa Ana, Orange County, California, law offices of Keith J. Bruno represents Californians who have been accused, charged, or arrested for criminal offenses in Orange County, Los Angeles, Riverside, San Bernardino and San Diego.