How Long Does the DA Have to File Charges in California?

In California, how long the DA has to file charges depends on the offense: one year for most misdemeanors, three years for most felonies, six years for felonies punishable by eight or more years in prison, four years from discovery for fraud-type crimes, and no time limit at all for murder, offenses carrying life imprisonment, and many felony sex crimes. A separate and much shorter clock runs if someone has already been arrested. In that case, Penal Code 825 requires the person to be brought before a judge within 48 hours, excluding Sundays and holidays.1California Legislative Information. California Penal Code 825 – Arraignment After Arrest

If Someone Has Already Been Arrested: 48 Hours

When a person is in custody, the DA does not have days or weeks to decide what to do. Under Penal Code 825, the arrested person must be arraigned before a judge within 48 hours, not counting Sundays and holidays.1California Legislative Information. California Penal Code 825 – Arraignment After Arrest If the window closes while the court is shut, the deadline extends to the next court session. A Wednesday evening arrest can push the deadline to Friday.

Two things can happen inside that window. The prosecutor files a complaint and the defendant appears before a judge, or the person is released. If a peace officer decides there aren’t sufficient grounds for a criminal complaint, the officer can release the person, and the arrest record gets reclassified as a detention.2California Legislative Information. California Penal Code 849 – Release From Custody

Release does not mean the case is over. The DA can still file charges later, up to the statute of limitations for the offense. The 48-hour rule only governs custody, not the investigation.

Misdemeanors: One Year

For most misdemeanors, Penal Code 802 gives the DA one year from the date of the offense to file charges.3California Legislative Information. California Penal Code 802 – Misdemeanor Limitations Period Petty theft, simple assault, and DUI without injury all fall here. Once the year is up, prosecution is barred.

A narrow set of misdemeanors carry longer windows. Annoying or molesting a child under 14 under Penal Code 647.6 has a three-year statute of limitations, and Penal Code 802 also extends the deadline for certain business-related offenses and violations involving unprofessional conduct.3California Legislative Information. California Penal Code 802 – Misdemeanor Limitations Period

One trap comes up often. A “wobbler” is a crime the DA can charge as either a misdemeanor or a felony. Because the prosecutor keeps the option to go felony, the longer felony statute of limitations governs, even if the case is eventually filed as a misdemeanor. Hoping a wobbler has expired under the one-year rule is usually wishful thinking.

Felonies: Three, Six, or Four Years From Discovery

Felony deadlines depend on how much prison time the offense could carry.

The default is three years. Penal Code 801 covers felonies punishable by state prison time, and it applies to charges like burglary, assault with a deadly weapon, and grand theft in the usual configurations.4California Legislative Information. California Penal Code 801 – Three-Year Limitations Period

Six years applies to felonies punishable by eight years or more in prison under Penal Code 800. First-degree robbery and arson are typical examples. Both misdemeanor and felony hit-and-run offenses also carry a six-year statute of limitations.5California Legislative Information. California Penal Code 800 – Six-Year Limitations Period

Fraud-type crimes work differently. Penal Code 801.5 gives the DA four years, but the clock does not start on the date of the crime. It starts when the offense is discovered or reasonably should have been discovered.6California Legislative Information. California Penal Code 801.5 – Four-Year Limitations Period After Discovery This rule covers fraud, breach of a fiduciary duty, theft from an elder or dependent adult, and misconduct by a public officer. A scheme that stayed hidden for ten years can still be charged if it was only recently uncovered. Most embezzlement cases sit here, and defendants often underestimate how much time the prosecutor actually has.

Crimes With No Deadline at All

The most serious offenses have no statute of limitations. Penal Code 799 allows prosecution at any time for crimes punishable by death or life imprisonment, and for embezzlement of public funds.7California Legislative Information. California Penal Code 799 – No Limitations Period Murder, kidnapping for ransom under Penal Code 209, and treason are the recognizable examples.

California expanded the no-limit category in 2017. Under Penal Code 799(b), many felony sexual assault crimes can now be prosecuted at any time, including certain forms of rape, sodomy, oral copulation by force, and lewd acts on a child.7California Legislative Information. California Penal Code 799 – No Limitations Period The change applies to offenses committed on or after January 1, 2017, and to older offenses whose statute of limitations had not yet run out by that date. Some sexual assault cases involving a child victim that fall outside these provisions can still be prosecuted until the victim’s 40th birthday.

When the Clock Starts and When It Stops

For most crimes, the limitations period runs from the date the crime was committed. The discovery rule under Penal Code 803(c) is the main exception, delaying the start for crimes that tend to stay hidden: fraud, breach of fiduciary duty, theft from elders, insurance fraud, and misconduct by public officers.8California Legislative Information. California Penal Code 803 – Tolling and Extensions

Stopping the clock takes a formal step from the prosecutor. Penal Code 804 defines what “commences” a prosecution, and any of these will do it:9California Legislative Information. California Penal Code 804 – Commencement of Prosecution

  • Filing an indictment or information.
  • Filing a misdemeanor or infraction complaint.
  • Arraigning the defendant on a felony complaint.
  • Issuing an arrest or bench warrant, if it identifies the defendant with the same specificity as a formal charging document.

A police investigation, standing alone, does not commence prosecution. Even an on-scene arrest doesn’t stop the statute of limitations. The clock keeps running until the prosecutor takes one of the formal steps above.

What Can Pause or Extend the Deadline

California generally does not allow the statute of limitations to be tolled, with a short list of exceptions in Penal Code 803.8California Legislative Information. California Penal Code 803 – Tolling and Extensions

The most common is leaving the state. Under Penal Code 803(d), time the defendant spends outside California does not count toward the limitations period, up to a maximum of three years. Two years out of state gives the DA roughly two additional years to file. Ten years out of state still only adds three.

Two other extensions come up in practice. Time spent on an active California prosecution of the same person for the same conduct does not count against the deadline. And for certain sex offenses, when DNA evidence conclusively identifies a suspect, the DA gets an additional year from the date of that identification to file charges, even if the original deadline has passed. The DNA exception applies only to qualifying offenses and has specific timing requirements for when the biological evidence was analyzed.8California Legislative Information. California Penal Code 803 – Tolling and Extensions

If the DA Files After the Deadline

An expired statute of limitations does not make late charges vanish on its own. The defendant has to raise it, because the court will not.

Before entering a plea, the defendant can file a demurrer under Penal Code 1004, which challenges defects in the charging document.10California Legislative Information. California Penal Code 1004 – Demurrer to Accusatory Pleading If the complaint on its face shows the charges are late, that is a legal bar to prosecution. A successful demurrer can lead to dismissal, though in some felony cases the DA has the option to refile with a corrected complaint.

If the case reaches trial, the prosecution has to prove by a preponderance of the evidence that charges were filed on time. If it can’t, the jury must find the defendant not guilty.11Justia. CALCRIM 3410 – Statute of Limitations

A separate problem is delay after filing. Even when charges are timely, an unreasonable delay in bringing the case to trial can violate the constitutional right to a speedy prosecution. California courts weigh four factors: how long the delay lasted, whether the prosecution caused it deliberately or through negligence, whether the defendant pushed for a faster resolution, and whether the delay actually harmed the defense through lost evidence or unavailable witnesses. The vehicle is a Serna motion. If the court finds the delay both unreasonable and prejudicial, the charges are dismissed.

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