How Long Does the DA Have to File Charges in California? Statute of Limitations Explained
The short answer: in California the District Attorney generally has one year to file a misdemeanor under Penal Code section 802 and three years to file most felonies under Penal Code section 801, counted from the date of the offense. Felonies punishable by eight years or more carry a six-year limit under Penal Code section 800, and the most serious crimes, including murder, have no limit at all under Penal Code section 799. Those are the headline rules, but the exceptions matter: the clock can start late for fraud, pause while you are out of state, and run differently for sex offenses and DNA cases. If you were arrested or interviewed in Riverside, San Bernardino, Hesperia, Los Angeles, or Santa Ana and have heard nothing, this guide explains what the silence means and what to do about it.
Why the DA Has Not Filed Yet
An arrest is not a charge. Police arrest on probable cause; the District Attorney files on proof beyond a reasonable doubt. After the arrest the agency sends its report to the filing deputy, who can file charges, reject the case, or send it back for further investigation. We explained that review in What Prosecutors Look At Before Filing Criminal Charges in California. A case that is "pending further investigation" can sit for months while detectives wait for lab results, bank records, phone extractions, or a reluctant witness, and in the Inland Empire and Los Angeles County that wait is common in DUI blood cases, fraud cases, and domestic violence cases where the complaining witness has stopped cooperating.
If you were in custody, the 48-hour rule applied. Penal Code section 825 requires that a person held after a warrantless arrest be taken before a judge within 48 hours, excluding Sundays and holidays, and County of Riverside v. McLaughlin requires a prompt judicial probable cause finding. If the District Attorney does not file within that window, you are released, often under Penal Code section 849, subdivision (b), and the release paperwork may say the case was not filed or was rejected. That release does not end the matter; the District Attorney can still file any time before the statute of limitations runs.
If you were cited out, the court date may be a placeholder. A citation under Penal Code section 853.6 lists a date, but the prosecutor may not have filed by then. When that happens at the Riverside Hall of Justice, the San Bernardino Justice Center, or the Victorville courthouse, the clerk will tell you there is no case on calendar, and the District Attorney will mail a notice to appear if and when charges are filed. Keep your address current with the court and the agency, because a notice mailed to an old address becomes a bench warrant when you do not show. See Arrested Last Night in the Inland Empire? What to Do Now.
The Basic Statute of Limitations Deadlines
Misdemeanors: one year. Under Penal Code section 802, subdivision (a), prosecution for a misdemeanor must begin within one year after the offense. That covers most DUI charges under Vehicle Code section 23152, domestic battery under Penal Code section 243, subdivision (e)(1), petty theft and shoplifting, simple possession, and driving on a suspended license. Section 802 contains longer periods for a few misdemeanors, including certain offenses against children, so check the subdivision that applies to your charge. If the District Attorney has not filed a misdemeanor complaint or obtained a warrant within a year, the case is over, and a complaint filed late must be dismissed.
Felonies: three years, or six for the most serious. Under Penal Code section 801, a felony must be charged within three years unless another section provides otherwise. Under Penal Code section 800, a felony punishable by imprisonment for eight years or more carries a six-year limit. Wobblers, such as corporal injury under Penal Code section 273.5, grand theft, or felony DUI, are treated as felonies for limitations purposes, so the three-year period applies even if the prosecutor later files or reduces the charge as a misdemeanor. Penal Code section 805 sets the rule that the limitation is determined by the maximum punishment for the offense, without regard to enhancements.
No limit for the most serious offenses. Penal Code section 799 provides that there is no statute of limitations for offenses punishable by death or life in prison, for embezzlement of public money, and, for offenses committed after the statute's recent amendments, for specified serious sex offenses. Murder and many violent sex crimes can therefore be charged decades later, which is how DNA cold cases from the 1980s and 1990s are prosecuted in Riverside and San Bernardino Counties today.
When Does the Clock Start and Stop?
When prosecution "commences." Under Penal Code section 804, the prosecution begins, and the clock stops, when an indictment or information is filed, when a misdemeanor or felony complaint is filed, when the defendant is held to answer after a preliminary hearing, or when an arrest warrant or bench warrant is issued, as long as the warrant names or describes the defendant with reasonable certainty. This is why a prosecutor who is running out of time will file a complaint and obtain a warrant even if the defendant cannot be found; the warrant preserves the case. It is also why you can be arrested on a years-old warrant for a case you never knew was filed, a scenario we covered in What Happens If You Miss Court in California?.
The discovery rule for fraud and fiduciary crimes. For offenses involving fraud, breach of fiduciary duty, embezzlement, and misconduct by public officials, Penal Code section 803, subdivision (c), provides that the limitations period does not begin until the offense is discovered, and Penal Code section 801.5 gives the prosecutor four years from discovery. Identity theft, forgery, and theft by false pretenses cases are routinely filed years after the transactions for this reason; see Is Identity Theft a Felony in California?. The prosecution bears the burden of showing when the victim or law enforcement discovered, or reasonably should have discovered, the crime.
Tolling while you are out of state. Under Penal Code section 803, subdivision (d), the limitations period is tolled for up to three years while the defendant is outside California. A person who moves to Nevada or Arizona after an incident in Barstow or Apple Valley does not run out the clock by leaving; the prosecutor gains up to three additional years. This provision is often the answer when a client asks how a charge can be filed four or five years after the event.
DNA and sex offense rules. Penal Code section 803, subdivision (g), allows a prosecution to be commenced within one year after a suspect is conclusively identified by DNA testing, even if the ordinary period has run, subject to conditions about when the evidence was analyzed. Penal Code section 801.1 allows prosecution of specified sex offenses against a minor to be commenced any time before the victim's 40th birthday for offenses committed within its effective dates, and Penal Code section 799 removed the limit entirely for certain sex offenses committed after its amendment. These provisions have been amended repeatedly, and which version applies depends on the date of the alleged offense, so a defense lawyer must trace the statutory history for the specific offense date.
The Legislature cannot revive a dead case. In Stogner v. California, the United States Supreme Court held that the Ex Post Facto Clause bars prosecution under a law that revives a charge after the original limitations period has already expired. The Legislature may extend a period that has not yet run, but once a case is time-barred, it stays barred. Whether a given extension applied to your offense date is a question of statutory history that the defense should check before anything else.
What Happens If the DA Files Late
The case must be dismissed. The statute of limitations in a California criminal case is not an ordinary defense that can be forfeited by silence. The California Supreme Court explained in People v. Williams that a defendant may raise the statute of limitations at any time, even after a guilty plea, when the charging document on its face shows that the prosecution is time-barred, and the prosecution bears the burden of proving that the action was timely. The defense raises the issue by demurrer or motion to dismiss, and if the complaint does not allege facts bringing the case within an exception, the court must dismiss.
Pre-filing delay inside the limitations period can also be challenged. Even when the District Attorney files before the deadline, a long and unjustified delay between the offense and the filing can violate due process if it prejudiced the defense, for example because a witness died or video was overwritten. Under United States v. Lovasco and California cases applying it, the court balances the prejudice to the defendant against the prosecution's reasons for the delay. These motions are hard to win, because investigative delay is usually justified, but they are available when the file shows the police simply sat on a completed case.
Delay after filing is a speedy trial problem. Once a complaint is filed, a different set of rules takes over. In Serna v. Superior Court, the California Supreme Court held that a misdemeanor defendant's speedy trial right attaches when the complaint is filed, and that a delay of more than a year between the filing and the arrest is presumptively prejudicial, shifting the burden to the prosecution to justify it. For felonies, People v. Martinez holds that the state speedy trial right attaches on the filing of the complaint but that the defendant must show actual prejudice from the delay. The federal right under Barker v. Wingo applies after arrest or formal charge. A Serna motion is the tool for the client who learns at a traffic stop in Fontana or Corona that a misdemeanor complaint was filed years ago and a warrant has been sitting ever since.
Speedy trial after arraignment. After you are arraigned, Penal Code section 1382 requires a misdemeanor trial within 30 days if you are in custody or 45 days if you are out, and a felony trial within 60 days of arraignment on the information, unless you waive time. Those deadlines are about the court's calendar rather than the District Attorney's filing decision, and we covered them in How Long Does a Criminal Case Take in California?.
What to Do While You Wait for a Filing Decision
Do not call the detective to check on the case. People who were released without charges often call the investigating officer to ask what is happening, and the call becomes an interview. Anything you say is admissible under Miranda v. Arizona because you are not in custody, and the filing deputy reads the follow-up report. Let a lawyer make that call; see Understanding Your Rights When Questioned by Police in California and Can I Talk My Way Out of Criminal Charges in California?.
Use the waiting period. The pre-filing window is the one time the defense can influence what gets filed. A lawyer can contact the filing deputy, present evidence the police report left out, such as a self-defense account with photographs or proof that an alleged theft was a billing dispute, and sometimes persuade the office to reject the case or file a lesser charge. The defense can also send preservation letters to stores and businesses whose video would otherwise be overwritten, and line up witnesses before memories fade. Read Charged in California? What Happens Next in Criminal Court for what follows if the office does file.
Handle the DMV deadline in a DUI case. In a DUI arrest the DMV suspension proceeds on its own timeline regardless of whether the District Attorney has filed, and you must request a hearing within 10 days of the arrest under Vehicle Code section 13558. Many people whose criminal case was "not yet filed" lose their license by assuming the whole matter went away. See How Does the DMV Hearing Work After a DUI in California? and our DUI defense page.
Check for a warrant before it finds you. If months have passed, a lawyer can check the court's online index and contact the District Attorney's office to learn whether a complaint was filed and a warrant issued. Walking into the Riverside Hall of Justice, the Rancho Cucamonga courthouse, or the Central Justice Center in Santa Ana with a lawyer to recall a warrant is far better than being arrested on it at a checkpoint in Hesperia or Victorville. Our guide to What Happens at Arraignment in Riverside County? explains that first appearance.
Seal the arrest when the time runs. If the District Attorney never files and the statute of limitations expires, or the office formally declines, you can petition to seal the arrest under Penal Code section 851.91, and in some situations you can ask the arresting agency for a determination that the detention was not an arrest under Penal Code section 849.5. A sealed arrest generally does not have to be disclosed to employers. See How to Seal an Arrest Record in California.
Frequently Asked Questions
How long does the DA have to file misdemeanor charges in California?
Generally one year from the date of the offense. Penal Code section 802 sets a one-year period for most misdemeanors, including first-offense DUI, domestic battery, petty theft, and simple drug possession. A few misdemeanors, mainly those involving minors, have longer periods under the same section. The period stops when the complaint is filed or a warrant issues under Penal Code section 804.
How long does the DA have to file felony charges in California?
Usually three years, sometimes six, and sometimes never. Penal Code section 801 sets three years for most felonies, Penal Code section 800 sets six years for felonies punishable by eight years or more, and Penal Code section 799 removes the limit for offenses punishable by death or life and for specified sex offenses. Fraud offenses run from discovery, and the period is tolled while you are out of state under Penal Code section 803.
If I was arrested and released without charges, is my case over?
Not necessarily. A release under Penal Code section 849 or a rejected filing means the District Attorney did not file at that time, but the office can file any time before the statute of limitations runs. Keep your address current, do not contact the detective or the alleged victim, and have a lawyer monitor the court index for a filing or warrant.
Can I be charged with a DUI months after the arrest?
Yes. Misdemeanor DUI under Vehicle Code section 23152 can be filed any time within one year under Penal Code section 802, and blood test cases in Riverside and San Bernardino Counties are often filed months after the arrest while the lab result is pending. Felony DUI carries the three-year felony period. The DMV hearing request under Vehicle Code section 13558 is still due within 10 days of the arrest.
What happens if the DA files charges after the statute of limitations has run?
The case must be dismissed. Under People v. Williams, the statute of limitations can be raised at any time when the charging document shows the case is time-barred, and the prosecution must prove the filing was timely or that an exception applies. The defense raises the issue by demurrer or motion to dismiss at or after arraignment.
Does the statute of limitations stop if the police issue a warrant?
Yes, if the warrant identifies you. Under Penal Code section 804, the issuance of an arrest warrant or bench warrant that names or describes the defendant with reasonable certainty commences the prosecution and stops the clock. The case can then remain open for years until you are found, although a long delay between filing and arrest may support a dismissal motion under Serna v. Superior Court in a misdemeanor case.
Talk to a California Criminal Defense Lawyer About a Pending Investigation
Gramling Law Group represents people under investigation and people charged in criminal courts throughout the Inland Empire, including the Riverside Hall of Justice, the San Bernardino Justice Center, and the Victorville courthouse, as well as Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options, including pre-filing representation aimed at keeping a case from being filed at all. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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