I have gotten several calls from potential clients asking what the statute of limitations is for a DUI. I always hear the same story from them and it goes a little something like this…
“I was arrested about 10 months ago for a DUI. I spent the night in jail and released with a court date. I showed up at the court date and told that the district attorney had not yet filed charges. I haven’t heard anything from the court. Is there a time for which the district attorney must file charges or will I have this hanging over my head forever?”
Well, the answer is no, you will not have it hanging over your head forever. For a non-felony DUI, the district attorney has one year from the day you were arrested to file charges. California Penal Code section 802 states, “Except as provided in subdivision (b), (c), or (d), prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense.” Subsections (b), (c), and (d) are not applicable to DUI cases. Therefore the statute of limitations on any misdemeanor DUI is one year.
Most of the time, the prosecutor files charges by the first court date. However, there are some circumstances in which prosecutors wait to file charges including waiting on a blood test, cases where the BAC was close or below the legal limit, or simply where the prosecutor is backlogged in reviewing potential cases to file. If charges have not been filed, the person will be notified of such during the first court date and told that they will receive a notice by mail if and when charges are filed. In these cases, many people often do nothing, hoping that the prosecutor will just “forget” to file charges. On the contrary, it is often advantageous for people to hire an attorney prior to charges being filed so that the attorney can attempt to prevent charges from being filed.
Also, people are often mistaken when they believe that the statute of limitations has run on an old DUI when they simply did not take care of the case. For example, someone might think that the statute of limitations has run on a seven year old DUI that they never appeared in court for. This belief cannot be more wrong. If charges were filed within a year of the arrest, not prosecuted, the statute of limitations has been met.
If this is you, chances are you have a warrant out for your arrest.