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What Is the Statute of Limitations to File a DUI Charge?

Posted by Neil Shouse | Jul 16, 2019 | 0 Comments

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A misdemeanor charge of driving under the influence (DUI) in California must be commenced within one year of the date it occurred. A felony DUI charge must be commenced within three years of the date it occurred.

Commenced for statute of limitations purposes means when one of the following events takes place:

  • an indictment or information is filed in felony cases,
  • a complaint is filed charging a misdemeanor,
  • the accused is arraigned on a complaint that charges him or her with a felony,
  • an arrest warrant or bench warrant is properly issued.

RULE: To determine whether an offense is a misdemeanor or a felony for statute of limitation purposes the maximum punishment for the offense is first examined.

In general, the maximum punishment for a DUI in California is based upon:

  • the number and type of prior convictions (if any),
  • whether someone was injured.

The maximum penalty for a misdemeanor DUI in California is:

  • First offense—six-months jail,
  • Second or third offense—one-year jail.

The maximum penalty for a felony DUI in California is:

  • three years state prison.

The statute of limitations is set out in California Penal Code sections 801 and 802. Applying these guidelines, the statute of limitations for a misdemeanor DUI is one year, and the statute of limitations for a felony DUI is three years.

How Is the Statute of Limitations Determined for a DUI charge?

To determine the statute of limitations for a criminal charge in California you first look at the maximum punishment under the law.

Important: A Statute of Limitations is a law that forbids prosecutors from charging someone with a crime if it was committed a specified number of years ago.

Under California Vehicle Code 23152, it is unlawful for a person to drive a vehicle while under the influence of alcohol or drugs.

Under Vehicle Code 23153, it is unlawful for a person to drive under the influence of alcohol or drugs AND to cause bodily injury to another person.

First, second, and third time DUI's are considered misdemeanors (exceptions below). The maximum punishment for misdemeanor DUI's in California is:

  • First offense—six-months jail,
  • Second or third offense—one-year jail.

Felony DUI's can occur when an accused:

  • gets a fourth DUI in a ten-year period, OR
  • gets a DUI and had a prior felony DUI conviction within ten-years, OR
  • causes serious injury or death to another person while under the influence.

The maximum punishment for felony DUI‘s in California is:

  • three years state prison

Please note, sentence enhancements are disregarded in determining the maximum punishment for statute of limitations purposes. For example, with felony DUI's there is often a sentence enhancement claiming great bodily injury OR injuring multiple victims.

Per Penal Code 802(a), prosecution for most misdemeanors must be commenced within one year after commission of the offense.

Per California Penal Code 801, prosecution for an offense punishable by a maximum of three years prison must be commenced within three years after commission of the offense.

Applying these rules, the statute of limitations for a misdemeanor DUI in California is one year, and the statute of limitations for a felony DUI is three years.

Please note, a felony DUI, in most cases, is considered a wobbler which means that it can also be filed as a misdemeanor. The statute of limitations is still three years in those cases. (See People v. Mincey (1992) 2 Cal. 4th 408)

Who Decides Whether to File a DUI as a Felony or a Misdemeanor?

In California, the decision to bring criminal charges rests exclusively within the discretion of:

  • the grand jury,
  • the district attorney, or
  • another prosecuting attorney.

A criminal prosecution is generally commenced by submission of the following to a filing deputy at a district attorney's office:

  • a crime report from a law enforcement or investigative agency,
  • an arrest report if an arrest has been made,
  • a make sheet (a list of the suspect's past police contacts and criminal record),
  • evidence report,
  • any other documents prepared during an investigation.

Based on consideration of this information and application of existing law, the filing deputy then decides to do one of three things:

  • file the case as a felony;
  • file the case as a misdemeanor;
  • reject the case or return it for further investigation.

Why Do Crimes Have a Statute of Limitations?

A statute of limitations is a law passed to set the maximum time after an event within which legal proceedings must begin or be barred.

Important: A Statute of Limitations is necessary to fairly protect defendants.

Although most crimes have a statute of limitations, not all crimes do. For example, there is no statute of limitations for murder.

Due Process under the Constitution requires fairness. With the passage of time,

  • witnesses forget things or move,
  • evidence disappears or is otherwise lost,
  • a person's ability to defend themselves becomes weaker and weaker.

NOTE: Statute of Limitations issues are a complicated and ever-changing area of the law. Always contact an experienced criminal defense attorney for the most up to date and accurate information.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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