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.

8 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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    1. Couple issues. What is the date of incident? When was the case filed? How much time in between?

      Was there a delay in the DA filing the case? If there was a delay in filing, was your case hurt by the delay? like losing evidence of a possible defense like possible surveillance video taped over because of the delay? Can't find potential witnesses or they don't remember due to the delay that might still have been around if the DA file right away? If there was a delay and your case was hurt by it, there's a possible basus for a Motion to Dismiss Due to Pre-Complaint Delay. That's a cousin to the more conventional Motion to Dismiss for Lack of Speedy Trial. The 2 year delay in being brought to court is still within the statute of limitations for a felony.

      If the DA filed pretty quickly, but you did not know about the pending case, there could be a basis for a speedy trial motion if your defense was hurt by the 2 year delay. Did the DA know your address but not send you a letter notifying you? Did you go to court on other cases during the 2 year period but were never told of this case or warrant? If yes to either and you've lost potential evidence or witnesses, then there's a potential Motion to Dismiss due to lack of Speedy Trial.

      Most importantly, your attorney can advise you best and she knows the specific facts of your case. Please consult your attorney as this is not legal advice.

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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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  3. If I was in a car accident in dec 2014, and I still have not received any charges can the DA legally push my court case out till.march 2016 now? They are trying to charge me with a DUI, I was never arrested just in the hospital?

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    1. If they charge you with regular DUI as a misdemeanor and the date of filing is more than one year after the date of incident, that's a violation of the one year statute of limitations for a misd. If the DA is filing as DUI causing injury, that can be a felony and there is the 3 year statute of limitations. However, was your case hurt by he delay in filing? If so, even as a felony there may be a possible motion to dismiss due to precomplaint delay or lack of speedy trial. See the comment above. Once again, consult with your attorney as she knows the facts of your particular case.

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  4. I got into a car accident in dec, 2014 and I have charges for another DUI, can the DA extend my court case until march 2016, until they make a decision. Please help.

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  5. I found out I was charged with pc273.5(a) in 6/1/2013 in California. Its now 2015 and this popped up on a random federal background check as "Involved in Criminal Case"
    The DA follow through on the case it appears. I knew nothing about this situation. I don't even know how I could be involved in it. I dated sort of a crazy person so I'm not terribly surprised she tried this....

    Could the DA choose to spark this up again? Why was it never filed?

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  6. The DA still has a couple months to file charges as a felony within the 3 year statute of limitations, but it is unlikely the DA's office would file charges if they had not already. The case was likely not filed for several reasons. It often depends on the filing standards of a particular county's DA office and the respective jury pool. Some counties are more willing to filing charges than others. That often depends on the likelihood of achieving convictions when the prosecution's evidence is not as strong. In more conservative, law enforcement-friendly counties and jury pools, the DA's office may be more inclined to file charges on a case than compared to a more police-unfriendly jury pool.

    The DA's office usually choose not to file charges when they do not believe they can achieve a conviction at trial. Many things factor in that decision on domestic violence cases where they don't feel confident in getting a conviction like: is the complaining witness inconsistent in her statements, was she drunk or under the influence at the time of the incident, are her injuries inconsistent with her story, lack of injuries, does she not remember many facts? There are many other reasons why a case does not get filed that we may never know. Many police reports that get forwarded to the DA's office to review for filing get turned down. Be thankful the DA's office has not filed charges in your case. Domestic violence cases are often he said/she said situations. If the DA's office believes the complaining witness' statement and the injuries are consistent with the report or there are independent witnesses to the assault, the DA's office will often file charges.

    Best of luck to you and if you're still concerned , check with the court to see if any charges have been filed between now and June. It's likely that you're in the clear if no charges have been filed and it's been almost 3 years. But once again, consult an attorney about your specific case.

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