A person is arrested on suspicion of driving under the influence here in California. They are booked and released with a citation when law enforcement believes they have sobered up. The citation includes a court location and a date upon which the person must appear for their arraignment. About a month goes by and the person appears on the date indicated on the citation, but is surprised to learn that their case is not on the court’s calendar. They are given a slip proving that they appeared and told to keep their eyes open for a notification in the mail from the prosecutor’s office letting them know that charges have been filed.
After this scenario plays out, two questions arise from clients; 1.) Is this common? and 2.) How long do I have to wait?
Let’s tackle the first question.
When law enforcement gives the citation to the person who has been arrested on suspicion of driving under the influence, they don’t actually know that the case will be filed on the date indicated in the citation. Typically, the date is set at least a month, sometimes several months, in advance. This gives law enforcement and prosecutor time to do several things before the court date.
Following, the arrest the officers must prepare the police report on the DUI arrest. This includes the actual written report, the interview of witnesses, the examination of evidence, and the preparation of any video footage.
Once the law enforcement agency completes its report, their file is sent to the prosecuting agency. Here in Southern California, the prosecuting agency is usually a City Attorney or a District Attorney. The prosecuting agency then reviews the file which was given to them by the arresting law enforcement agency and determines if there is enough evidence to file charges.
Often is the case that, by the time this process is complete, the date written on the bottom of the citation has come and gone. Once the prosecutor has all of the information they need and actually make the decision to file California DUI charges, they’ll issue a notification to the person letting them know that charges have been filed and give them a new court date.
So, to answer the first question, unfortunately the answer is yes, it is common and more common than people know.
On to the second question; “How long does the prosecutor have to file the charges?” In other words, how long must a person have to anxiously wait for those charges to be filed?
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 prosecutor has one year from the date of arrest to file misdemeanor DUI charges. This is what is called a “statute of limitations.”
Unfortunately, many people mistakenly believe that because the prosecutor hasn’t filed charges by the date on the citation, that the prosecutor has forgotten or that the case just simply and magically disappears. Not so. They have a year.
Additionally, people whom DUI charges have been filed against them within that year, but fail to go to court for years afterwards are also mistaken in believing that they can’t face charges because it is past the statute of limitations. As long as the charges were filed within that year, the charges remain and the person likely has a warrant out for their arrest.
At least in my experience, prosecutors very rarely “forget” to file charges. While it may be common for the date on the citation to come and go, it is not common for that year to come and go without charges being filed. It’s not a matter of if, it’s a matter of when.
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