DUI charges often have a specified time limit, or statute of limitations, after which the charges must be brought against a person.
If you are pulled over by the police and arrested for a DUI, you may not be charged with any crime or receive a court date right away.
This can happen for misdemeanor DUIs when the police are waiting for the results of a blood test to come back. And for felony DUIs, a prosecutor must review the charges first before a case is filed.
How long a DUI case can stay open after an arrest depends on whether the case is charged as a misdemeanor or a felony DUI.
How Long Can a DUI Stay Open in Arizona?
After you are arrested for a DUI, the prosecutor has 1 year to charge you for a misdemeanor DUI and 7 years to charge you for a felony DUI. This rule comes from Arizona’s statute of limitations. If the prosecutor does not file a case within those timeframes, then the DUI cannot be charged.
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Note: There are some exceptions to this rule (discussed more below), which can extend the time period for charges to be filed. Each DUI case should be viewed as a unique case with unique circumstances.
Statute of Limitations for a Misdemeanor DUI
The law that determines how long a DUI investigation can remain open before charges are filed is called the “statute of limitations.” Under Arizona law ARS 13-170 the prosecutor must file misdemeanor DUI charges within 1 year of “actual discovery by the state” of the DUI offense or when the discovery should have occurred “with the exercise of reasonable diligence.”
In Arizona, a misdemeanor DUI occurs whenever a person is driving a car while “impaired to the slightest degree” by alcohol. Because of how the police conduct road-side DUI investigations to determine if a person is impaired by alcohol, the discovery of the crime will almost always occur the night of the arrest. That is why the time limit for the statute of limitations on a misdemeanor DUI will almost certainly start as soon as a person is pulled over for DUI.
Example: The police pull a driver over for a DUI on January 1, 2022. Generally, the prosecutor has until January 1, 2023 to file misdemeanor DUI charges against the driver.
But if the DUI is charged as felony, charges may be hanging over a driver’s head for a long time.
Statute of Limitations for a Felony DUI
Under the same Arizona statute of limitations, ARS 13-170, felony DUI charges can be brought up to 7 years from the date of the DUI. Because felonies are considered more serious than misdemeanors, the law gives the prosecutor a greater period of time to determine if charges should be filed.
For felony DUIs, charges are usually not filed immediately. This is because, for misdemeanors, the police can initiate charges the night of the arrest by issuing a police citation. The police citation will list the misdemeanor charges and a date and time for the driver to appear for court. But only a prosecutor can initiate felony charges. The police cannot commence a felony case with a traffic ticket.
What usually happens is that the police officer will give the driver an admin per se form, letting him know that his license will be suspended for suspicion of DUI. The officer will then submit felony DUI charges to a prosecutor. The charges will be sent to the prosecuting agency, and at some point a prosecutor will review the charges and then make a charging decision (i.e., a decision to either file criminal charges or not).
If the prosecutor decides to file charges, then a court date will be set in superior court and the driver will likely receive a summons to appear for the court date in the mail. If the driver misses the court date then the court may issue a warrant for the driver’s arrest.
This process may not happen immediately. It is not uncommon to wait several months, or a year or more, for felony DUI charges to be filed. How long it takes can depend on any variety of factors, including how backed up the prosecutor’s office is.
That being said, all things being equal, the State will usually try to bring charges against a person sooner rather than later. The State’s case will usually get worse, not better, with the passing of time because witnesses such as police officer may move away or retire, and the State’s case will become more difficult to prove. So while the State might technically have 7 years to bring felony DUI charges, if charges are going to be filed it is not uncommon to see them brought within a few months to a year.
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How Can you Tell if you DUI is a Misdemeanor or a Felony?
If you were pulled over for a DUI and received a court date to appear in either a city court or a justice court, then you are facing misdemeanor charges. This is because city and justice courts can only charge misdemeanors. They can’t charge felony DUIs.
Also, if you are cited under a misdemeanor DUI statute on the traffic ticket, then you are facing misdemeanor DUI charges. These statutes include ARS 28-1381(A)(1); ARS 28-1381(A)(2); ARS 28-1381(A)(3); ARS 28-1382(A)(1); or ARS 28-1382(A)(2).
If you have not received a citation for your DUI charge after your arrest, that might mean you have been charged with a felony. You can be charged with felony DUI if you commit a DUI but there are certain aggravating circumstances, such as having a child in the car or driving while your license is suspended.
But just because you have not received a citation, that does not mean you necessarily committed a felony. The police officer may have decided not to charge you yet because the police are waiting for the results of a blood test.
A DUI lawyer will usually be able to discuss your case with the police and the prosecutor to determine what type of charges you may be facing. This is the only sure way to avoid the uncertainty of what you are facing if you have been arrested for a DUI but not yet charged.
Some Exceptions to the Time Limits
As with many legal issues, there are some exceptions to the general time limits imposed by the statute of limitations.
The Statute of Limitations is Paused when the Defendant is Out of State
One exception is that the time limits are paused when a defendant is out of state. So if a person commits a felony DUI in Arizona on January 1, 2022, but he then leaves the state the next day, the 7-year time limit to file felony DUI charges will not start until the defendant returns to Arizona. This way a DUI offender cannot avoid prosecution by simply fleeing the state for a period of time and then returning after the statute of limitations has run out.
Special Rules for When a Case is Dismissed
Sometimes after a case has been charged, the prosecutor decides to dismiss the case “without prejudice.” If the court grants the motion to dismiss “without prejudice” (as opposed to “with prejudice”) then the State can refile the charges at a later date. This resets the statute of limitations slightly.
Under those circumstances, a new prosecution can be started within 6 months after the dismissal becomes final, even if the original statute of limitations period expired.
Example: A driver is arrested for misdemeanor DUI on January 1, 2022. He is not charged with a DUI until November 1, 2022. On February 1, 2023, the State dismisses the DUI charges without prejudice. The State now has another 6 months to refile the charges, even though the original statute of limitations expired on January 1, 2023.
Stewart Salwin
Stewart Salwin is the founder and lead attorney at Salwin Law Group, a Scottsdale criminal defense law firm based in the greater Phoenix area. His practice is primarily dedicated DUI-defense work. He is a graduate of Georgetown University and Harvard Law School, where he was taught criminal law by world-renowned defense attorneys.
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