In California, a DUI can be a misdemeanor or a felony. A felony DUI is filed when there are more than 3 prior DUI convictions, from the arrest date to the arrest date, within the past ten years. A felony DUI can also be filed when a Los Angeles DUI driver causes an injury to another person. Also, a felony DUI can be filed if you have a previous felony DUI conviction within the past 10 years. A misdemeanor DUI will be filed in all other instances and that is the majority of Los Angeles DUI prosecutions.
Statute Of Limitation Misdemeanors
Statutes of limitations can be found in California Penal Code sections 799-805. A misdemeanor DUI case has to be prosecuted within one year from the date the DUI happened (see PC 802(a)). If the police did not bring the case to court within one year of when it happened, the DUI cannot be filed anymore. The reason a DUI that is more than 1 year cannot be prosecuted is the “statute of limitation”, which is the law that gives the police time to bring their case to the court. A misdemeanor statute of limitations for a DUI in California is 1 year (like most other misdemeanors).
For example, if you were arrested for a DUI in Los Angeles on January 1, 2021, and the police did not have your DUI case filed in the court by December 31, 2021, the court will not have jurisdiction to handle your DUI. Violations of “statute of limitation” are “jurisdictional defects” and they will stop the Court from hearing your Los Angeles DUI case, in the same way, your DUI case cannot be filled in a faraway court. The statute of limitations for your Los Angeles DUI has expired and this DUI criminal case no longer can be heard by a Los Angeles judge.
However, once in a while, the police (or the prosecutor) try to file older cases in Los Angeles and try to come up with an excuse for why the case was not filed on time. Recently, due to COVID, some courts give the prosecutors more time to file old cases. When this happens, you have to hire a Los Angeles DUI attorney and fight your Los Angeles DUI.
These kinds of legal violations, to wit, the violations of the statute of limitations for a DUI can be fought anytime during the pendency of the case. Yet, it is far better to fight a statute of limitation violation prior to entering a plea and as early as the first appearance in the criminal court, which is called, the arraignment. Legally, when you are trying to get a criminal case dismissed based on a violation of the statute of limitation at arraignment, you are asking for a “demurrers’, which is the same thing as asking for dismissal of the complaint. Demurrers is a request to dismiss a complaint because of the defect is obvious “on the face” of the complaint. If you are not certain what to do in your case, do not enter the plea, instead, ask for a continuance to talk to a Los Angeles DUI attorney. A defective complaint can not be prosecuted and if the defect is obvious from reading the allegation, the court will give the government an option to fix the complaint, or dismiss it. In the example above, the court will ask the government to change the dates so that the offense is within one year of filing or it will dismiss the case for a lack of jurisdiction. If you or your Los Angeles DUI attorney files a “demurrer” you can use this language:
“The Defendant is demurring to the charges in the complaint because they violate the statute of limitation. Specifically, the date listed in the complaint is DATE X. The case was filed on DATE Y. Because DATE Y is more than 1 year after DATE X, the case is filed more than 1 year after the alleged crime took place.
Penal Code Sections 802 and 804 explain that a DUI has to be filed by the prosecution within 1 year:
§ 802. Time period for commencement of prosecution
- (a)Except as provided in subdivision (b), (c), (d), or (e), prosecution for an offense not punishable by death or imprisonment in the state prison or pursuant to subdivision (h) of Section 1170 shall be commenced within one year after commission of the offense.
- (b) Prosecution for a misdemeanor violation of Section 647.6 or former Section 647a committed with or upon a minor under the age of 14 years shall be commenced within three years after commission of the offense.
- (c) Prosecution of a misdemeanor violation of Section 729 of the Business and Professions Code shall be commenced within two years after commission of the offense.
- (d) Prosecution of a misdemeanor violation of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall be commenced as follows:
- (1) With respect to Sections 7028.17, 7068.5, and 7068.7 of the Business and Professions Code, within one year of the commission of the offense.
- (2) With respect to Sections 7027.1, 7028.1, 7028.15, 7118.4, 7118.5, 7118.6, 7126, 7153, 7156, 7157, 7158, 7159.5 (licensee only), 7159.14 (licensee only), 7161, and 7189 of the Business and Professions Code, within two years of the commission of the offense.
- (3) With respect to Sections 7027.3 and 7028.16 of the Business and Professions Code, within three years of the commission of the offense.
- (4) With respect to Sections 7028, 7159.5 (nonlicensee only), and 7159.14 (nonlicensee only) of the Business and Professions Code, within four years of the commission of the offense.
- (e) Prosecution for a misdemeanor violation of Section 6126, 10085.6, 10139, or 10147.6 of the Business and Professions Code or Section 2944.6 or 2944.7 of the Civil Code shall be commenced within three years after discovery of the commission of the offense, or within three years after completion of the offense, whichever is later.
§ 804. Commencement of prosecutionExcept as otherwise provided in this chapter, for the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs:
- (a)An indictment or information is filed.
- (b)A complaint is filed charging a misdemeanor or infraction.
- (c)The defendant is arraigned on a complaint that charges the defendant with a felony.
- (d)An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.Here, in violation of Penal Code section 802, the prosecution, as prescribed by Penal Code section 804, did not commence within 1 year, therefore the demurrer should be granted and the case dismissed.
This legal issue comes up once in a while in DUI cases and other Los Angeles Criminal cases. A legal violation like this will allow DUI Attorney Los Angeles to get a dismissal of Los Angeles DUI charges. Drunk driving attorneys in Los Angeles are very experienced in getting dismissals based on jurisdictional defects and based on due process rights violations. If you are facing a DUI Los Angeles case and need an affordable DUI attorney in Los Angeles, call our office to talk to a drunk driving attorney right now. We are known to provide quality representation at affordable prices. Our areas of expertise involve all DUI cases in Los Angeles, other traffic-related charges, DMV hearings and appeals, and other criminal cases in Los Angeles.