Russell Hebets April 18, 2011

Plainly put, the Statute of Limitations is a law which prohibits prosecution of crimes after a certain duration of time has elapsed. Stated another way, the Statute of Limitations essentially creates an “expiration date” for crimes; if the “expiration date” for a crime has come and passed, charges for that crime can no longer be filed.

Here’s a simple example: The Statute of Limitations for a DUI offense is one year. This means that, in order to legally prosecute a DUI, the prosecutor must file charges within one year from the date the DUI is alleged to have been committed. If for any reason the charges are filed outside that year, the case must be dismissed as being barred by the Statute of Limitations.

The Statute of Limitations (or “expiration date”) varies among different crimes. Generally speaking, the more serious the crime, the longer the Statute of Limitations, i.e., the longer the prosecution has to file the case before they will be prohibited from doing so based on the Statute of Limitations. For petty offenses, the Statute of Limitations is 6 months; For Class 1 and 2 misdemeanor traffic offenses, the Statute of Limitations is 1 year; For misdemeanors, the Statute of Limitations is 18 months; for certain felonies the Statute of Limitations is 3 years; for vehicular homicide and leaving the scene of an accident resulting in death, the Statute of Limitations is 5 years. Some crimes, such as murder and all sexual offenses against children have no Statute of Limitations. For those crimes which have no Statute of Limitations, charges can legally be filed at any point, regardless of how much time has elapsed/passed since the date of the alleged crime.

While not a terribly frequent occurrence, charges are occasionally filed outside the Statute of Limitations. As a prosecutor for 10 years, I handled a handful of cases in which the Statute of Limitations had run prior to the case having been filed. In my experience, these errors were not made maliciously or intentionally, but rather, they were accidental or inadvertent – most commonly the result of a novice officer or prosecutor who was simply not in the habit of double-checking the offense date with the Statute of Limitations prior to filing.

Regardless of how a case gets filed outside the Statute of Limitations, such a circumstance will almost always require a competent defense attorney to identify the problem and seek a remedy (dismissal of the case), as it is neither the responsibility nor the practice of judges and courts to identify this type of error. Stated differently, as it is not the judge’s job to identify and raise issues on behalf of either party (a judge’s role is merely to decide issues raised by either party,) a defense attorney is necessary to identify that the “expiration date” for a crime has come and gone. Until or unless a defense attorney discovers his client’s case is prohibited from being prosecuted, a case filed in violation of the Statute of Limitations could go unnoticed by the other parties and the prosecution would proceed as normal – – potentially resulting in a conviction and sentence. However, if a skilled defense attorney is involved, assessment and remedy of this error can be relatively swift.

If a defense attorney discovers his client’s case was filed outside the Statute of Limitations (and therefore cannot be legally prosecuted,) the defense attorney should be able to get the case dismissed by filing a Motion which brings the matter to the prosecutor’s attention. Once the prosecutor becomes aware that the case is barred by the Statute of Limitations, the prosecutor should simply dismiss the case. Unfortunately, however, there are some circumstances which may require additional action from the defense attorney such as filing more complex legal documents (i.e., briefs to educate/persuade the prosecutor) or motions to seek the judge’s intervention.