What Is the Statute of Limitations for a DUI/DWI?

All states make it a crime to drive while under the influence of drugs or alcohol. Some use the abbreviation DUI for driving under the influence, others use DWI for driving while intoxicated or OWI for operating while intoxicated. When a violation leads to an arrest, the district attorney must bring criminal charges against the driver within a certain amount of time. This period is called the statute of limitations, and the limitations period varies from state to state, ranging from one year to six years or more.

Although all states make driving while drunk or drugged a crime, the laws are not uniform from state to state. Generally, it is illegal to drive while the driver's faculties are impaired by alcohol or drugs. Most states set a limit for the amount of alcohol a driver can have in their system, measured by blood alcohol concentration or BAC.

This is measured by chemical testing and is termed a "per se" DUI because no other evidence of impairment is required other than the test results. A few states have drug per se DUI offenses as well, setting a maximum BAC level for the active ingredient in a specific drug.

Justice delayed, as they say, constitutes justice denied. To that end, state legislatures set a limited window of time in which a district attorney may file a DUI charge against a driver. The time period runs from the date of the incident, and once the window of time has passed, no charges can be filed in the DUI case. This is not unique to drunk driving charges; most crimes in most states have statutes of limitations.

The driver's evasive behavior can extend a statute. For example, if the driver leaves the state or hides from the law, the statute is said to be "stayed." That is because the intent of the statute is to protect a driver from having to argue about something that happened a long time ago. It's harder to gather evidence years after an event as memories fade and witnesses leave the area.

It's important to understand that the statute of limitations does not provide a period in which the case must be prosecuted or taken to trial. It applies only to the filing of the charges in court. The prosecutor can file the charges within the statutory period and then prosecute the following year or even later.

It's wise to avoid any criminal record, but, given the choice, it's better to be charged with a misdemeanor than a felony. Generally, simple drunk/drugged driving charges are charged as misdemeanors, the lesser type of criminal offense. This level of crime carries maximum jail time of one year, and felony charges carry a penalty of a year or more.

In most states, a first, second and even a third DUI offense are charged as misdemeanors unless there are aggravating circumstances, like having a child passenger or causing an accident that seriously injures another person. Generally, the statute of limitations for a misdemeanor DUI is one or two years from the date of the violation.

Felony-level crimes are the more serious violations, such as crimes like murder and rape. A DUI can also be a felony in most states if there are aggravating circumstances. For example, some states make a third or subsequent DUI a felony charge, and others make it a felony to have a child passenger in the car while driving drunk.

In many states it is a felony to injure or kill someone as a result of drunk driving. Very high BAC levels might also constitute aggravating circumstances.

State laws generally give prosecutors a larger window of time in which to file felony charges than misdemeanor charges. The general rule sets the statute of limitations at three years from the offense, but the statute can set up to five years.

While it is typical for states to set limitations on DUI misdemeanor charges for a year or two more after the arrest and on felony DUI limitations at three to five years, each state is different. It's useful to review a few actual state limitations periods for drunk/drugged driving charges to understand the scope of the range.

Under California Penal Code Section 801 and Section 802, a misdemeanor charge of driving under the influence must be commenced within one year of the date of the DUI, and a felony DUI charge must be commenced within three years of the date of the DUI. The term commenced in this context, means that the prosecutor must file either a misdemeanor complaint or a felony indictment, arraign the driver on a felony charge, or issue an arrest or bench warrant for the person's arrest.

The Alaska statute of limitations for driving under the influence of alcohol is very different from that of California. The Alaska statutes give prosecutors a full five years in which to file a charge for either a misdemeanor or a felony DUI, and this period can be extended if the driver leaves the state. Alaska sets no limitations period at all for crimes like murder, felony sexual abuse of a minor, sexual assault, incest, kidnapping and sex or human trafficking.

A look at Ohio's statutes of limitations for DUIs shows a two-year statute of limitations for a misdemeanor and a six-year limitations period for a felony. The statute requires that the action be commenced, not completed, within those periods. Under the statute, a prosecution is commenced when a criminal indictment is filed, a warrantless arrest is made, or on the date a citation is issued.

Given the fact that most DUIs begin with an arrest by a police officer during a traffic stop or with a citation after a driver fails the breath test, this is not a very high bar. A few Ohio appellate courts have ruled that a simple DUI arrest does not amount to a commencement of prosecution.