If you were arrested for a crime but the DA never ended up filing charges against you, you may be wondering if they ever will.  You may also be wondering how long it will be before the DA is barred from filing charges.  The statute of limitations is a law that says the maximum time the prosecutor has to file charges.  In California, there is a Penal Code section that spells out the time period in which the DA must file charges.  That code is Penal Code section 802, subdivision (a), and it states the following:

“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.”

The clear language of this statute prohibits prosecutors from filing charges against a person for an alleged misdemeanor offense one year after the alleged commission of the offense.  I know, lots of “alleged” words in that sentence.  What can I say, I like that word…  There’s also that wonderful legal fiction that a person is innocent until proven guilty in this country.  As such, until the person is proven guilty, it is only alleged that the person committed an offense.  I digress.  There are some exceptions to the statute of limitations for misdemeanor crimes listed in subdivision (b), (c), (d), and (e) of the above section.  Click on the link above if you would like to do some research.  Most misdemeanors are covered by subdivision (a), above.  In practice, this usually means after one years has elapsed, the DA will not file charges.  However, this statute is not a per se bar to filing charges, rather, it creates a presumption of prejudice to the defendant that the prosecutor must then overcome by presenting evidence that there was a very good reason for the excessive delay in filing charges.  (People v. Serna (1985) 40 Cal.3rd 239.)  In the majority of cases, once that statute of limitations has run, the person is in the clear.

If charges are filed, but you decided not to appear in court to address them, the statute of limitations obviously does not apply.  Once the DA files charges, your failure to address those charges is on you.  The statute of limitations has been satisfied once charges are filed and you receive notice to appear in court.  A delay in the process caused by the defendant’s failure to appear will only prejudice the defendant’s case.  Although you can’t be found guilty of a misdemeanor case in absentia (in your absence), the longer the case remains unaddressed, the more difficult it will be for you to fight it if you have a defense.  In addition, a warrant will be issued for your arrest, and you may be arrested without warning until you address the charge.

So for those of you who were arrested for a misdemeanor but charges were never filed, the statute of limitations says that after a year you can start breathing again.  What will often happen is that the DA doesn’t have all the evidence needed prior to your arraignment date, or wants more time to investigate the matter.  When that happens, the court will usually give you a new court date to come back.  If you’re lucky, the DA will decide not to file charges at that later date.  If charges are eventually filed, make sure you appear in court.  Hiring an attorney before charges are filed is usually a good idea.  If you can’t afford an attorney, you can be appointed a public defender at the time of your arraignment (first court date).


  • The information in this article is not a substitute for discussing your case with a criminal defense lawyer.  Laws change frequently in the criminal practice and therefore, this article should not be relied on. If you have questions about your case, feel free to call us at (530) 809-1752 to speak with an attorney.  This article may not be accurate with regard to your specific, unique case.  This article is for general information purposes only.  Call an attorney for the most accurate information about your specific case.  This article addresses the statute of limitations for a limited category of misdemeanor crimes.  For felonies and certain misdemeanors, the statute of limitations is not one year.  Lastly, this article does not create any attorney-client privilege.


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