What to do when the DA doesn’t file charges
The District Attorney didn’t file charges at my arraignment. What should I do?
Why were my charges not filed before I got to court?
It might surprise you that this is not an unusual situation. The Orange County’s DA’s office has been subject to certain budget cuts post-recession, and this has been happening with increased regularity as a result. When forced to prioritize, non-violent, non-felony cases , and cases where the defendant is not still jail, like most DUI cases, get the lowest priority.
There are instructions on the DUI paperwork to police officers, telling officers to send out the police report within five days. The same report goes to to both the DMV, for use in your DUI hearing, and to the prosecutor at the courthouse which has jurisdiction over your case.
But that doesn’t always happen. And sometimes there are delays. In some cases, the DA’s office has not yet received any paperwork, or is reviewing paperwork, or has sent back the reports, asking for more information before they file charges.
How long do they have to file charges?
Under Penal Code section 1382, the prosecutor’s office has one year from the date of commission of the offense to file charges for misdemeanors like a DUI (and three years if it’s a felony charge). If your case is filed at a later date, a letter with your new court appearance date will be sent to your address on the police report or citation. If you’ve moved, make sure to update your forwarding address with your local post office.
For Orange County DUI cases, you also should periodically check the court’s website, www.occourts.org, and once the case is filed, it will appear there. Under the law, the District Attorney’s office has up to one year from the date of the incident or arrest to file a misdemeanor charge.
Could this help my DUI get dismissed?
Probably not. But as more times goes on, the odds of you never having to deal with the case increases. Keep track of that one year date from your arrest or citation. If your case is not filed within one year, you can be assured that your case will not be filed, ever.
However, DO NOT agree to go in and talk to the DA about your case! Doing so won’t help you, and may cause them to look for, and file, the case, add additional charges based upon your statement, or add evidence from your statement to the case. You have a Fifth Amendment right not to talk to the DA, police, or their investigators.