Statute of Limitations: What it Means for You

Statute of Limitations:  Shouldn’t my “old” case get dismissed?


In this article, I’m going to explain the statute of limitations and what it means, and doesn’t mean, in terms of your criminal case.


The statute of limitations is a time bar against the filing of a case after the actions that would give rise to the case have occurred.  For misdemeanors, the statute of limitations is two years.  For most felonies, the statute of limitations is five years, but for some it is explicitely changed in the Penal Code.  Five years is the default unless it is changed by statute.  For very, very serious crimes, there may not be a statute of limitations or it may be a very, very long period of time. 


What is the statute of limitations?  It basically means if you do a criminal act, like an assault with bodily injury, the police and prosecution have to file the complaint charging you with a crime within the misdemeanor statute of limitations of two years.  The complaining witness cannot make an outcry two years and one day after the assault and get a case filed.  It is time barred.   If for some reason, the police have evidence that you were selling drugs and the prosecution does not get that case of manufacturing and delivering indicted within five years, it is barred from going forward by statute.  Even for things like traffic tickets, Class C misdemeanors, if the state does not file a complaint (the formal charging instrument) within two years, it is barred from going forward.  They have to dismiss the charge and cannot fine you for running that red light. 


What does it not mean?  It does not mean that once you have a charging instrument filed against you -  a complaint in a misdemeanor and an indictment in a felony – they have to dismiss “after the statute of limitations has passed” if you have not pled, been tried, or had the case dismissed.  The statute of limitations is NOT AT ALL a bar to prosecution once the charging instrument has been filed.  The case can remain pending for a long time afterward.  If you leave town, bond forfeit, skip court, etc, and the case remains pending with no plea for 15 years – the prosecution is not bound by the statute of limitations to dismiss the case.  They may dismiss for other reasons, but not because the statute limitations demands it.


It also means you may not get arrested on it immediately, or even until the “stature of limitations” has theoretically ran since the date of the incident.  You may get indicted and move to Mexico in the meantime.  When you come back across the border in 5 years and get arrested crossing the border – there is no statute of limitations defense just because you never got arrested on the warrant. 


I have had clients ask me “why are they expecting me to plea?  This case is old.”  Well maybe so.  The time passed may weaken the strength of the evidence against you --- the witnesses may not have the same addresses and may not be locatable – but it may not either.  A .25 BAC is a .25 BAC whether the DWI is 6 months old or 3 years old.  If the case is filed, the prosecution may want to go forward regardless of the age of the case.  Your attorney is not going to be able to urge a statute of limitations defense. 


Bottom line:  statute of limitations bars the filing of a case after a time has passed.  It does not bar prosecution after the filing of a case, regardless of how much time has passed. 


If you are struggling with an old case, there may be other ways to defend it besides urging its dismissal based on statute of limitations.  If you have an old case, and you want to talk about how to resolve it, call me today.