Friday, August 31, 2012

How long does the DA have to file charges?

As any good lawyer will say, "It depends."

It depends on the type of charge and how charges are filed.

Misdemeanors

For misdemeanors, the District Attorney's office usually has up to one year from date of incident to file charges.  If charges are filed after one year from date of incident, your attorney must address that issue (give notice) at the arraignment (defendant's first appearance in court).  The date of incident should be stated on the Complaint or the date of offense listed at the top of the citation.  The date of filing of the Complaint should be stamped by the court clerk somewhere on the Complaint.

Felonies

For felonies, the amount of time the DA's office has to file charges depends on the type of charge and any special rules regarding discovery of the crime.  For most general felonies (possession/sale of drugs, auto theft, felony assaults), the DA's office has up to 3 years from date of incident to file charges.  For murder charges, there is no deadline to file charges since it is punishable up to life in prison.  For other felonies, the time starts running not from the date of incident, but from the date when the alleged crime was discovered or reported (molestation, certain fraud/embezzlement crimes).  The rationale in the law for this variation is that for some crimes, there is a delay in reporting of many years (molestation) or financial crimes are discovered after the alleged act was committed.

In short, if a person is arrested, it may take quite a while to find out whether or not a criminal case is filed.

What Happens After Being Arrested

For a non-traffic case, the police officer (or Detective handling follow-up investigations) will write a police report summarizing the incident. That report will be forwarded to the District Attorney's Office  for review to determine if the office will file criminal charges.  If the DA's Office believes there is sufficient evidence to prove guilt beyond a reasonable doubt at a jury trial, the office will file criminal charges through a CRIMINAL COMPLAINT.

If the DA's Office believes that based on the police report, no crime was committed or there is insufficient evidence to prove guilt, then the DA's Office will TURN DOWN the case.

If the DA's Office believes that more information is required in order to determine if charges will be filed, the DA's Office can request supplemental investigation.  The police will do more investigation and upon supplemental investigation reports submitted to the DA's office, the DA will decide to either file charges or turn down the case.

2 comments:

  1. I was arrested for a felony in September 2011 based on a search warrant - Went through both "Pre-trial services" and "Complaint Calendar" at same time at time of PT services they outlined felony and Said I committed one
    PT services and complaint calender dropped like 3 months later - In 2013 was called to court for this (1st time ever seeing court or magistrate) got PD - still have yet to formally plea - What defense should I use being as PD is ignoring anything I bring up?

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  2. If your case is in California and the date of arrest is 2011 and you appeared in court in 2013 on a felony case arising out of the same search warrant, then I believe it falls within the 3 year statute of limitations. What it sounds like to me is the DA's office had not filed charges for 3 months after the search. Somewhere in between the last time you went to court and your appearance in 2013, the DA's office filed charges, but you did not know about it until 2013. You should talk to you lawyer about it, which sounds like you have. The next step would be to consider legality of the search. Have they had a chance to get a copy of the search warrant? Is there anything questionable on the face of the search warrant or in the execution of it? Was the search warrant served at night? If so, was night service authorized? What does the probabe cause declaration - which justifies the search warrant - state? Was a confidential informant used? If so, filing a motion to get the name of the informant? Is the search warrant sealed? If so, filing a motion to unseal?

    Talk to your lawyer. She will give you the best advice on the next course of action. Thanks for the question!

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