It depends on the most serious punishment the law allows for the charge, not on how the prosecutor chooses to file it: one year for a DUI that can only be a misdemeanor, and three years for a DUI that the law allows to be punished as a felony, even if it is filed as a misdemeanor. In either case the clock starts on the date of the offense.
The basic deadlines
Under Penal Code section 802, an offense that cannot be punished by state prison or by a felony sentence under Penal Code section 1170(h) must be commenced within one year after it is committed. Under Penal Code section 801, an offense punishable by state prison or under section 1170(h) must be commenced within three years. A first, second, or third VC 23152 DUI within 10 years is punishable only by county jail under Vehicle Code sections 23536, 23540, and 23546, so those offenses get the one-year deadline. The exception is a driver with a qualifying prior, such as a DUI punished as a felony within the last 10 years or a prior conviction for gross vehicular manslaughter while intoxicated: for that driver, even a second DUI can be punished by state prison (Vehicle Code section 23550.5), which brings the three-year deadline.
Why some DUIs get three years, even as a misdemeanor
Under Penal Code section 805, an offense “is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed.” Sentence enhancements are not counted in that maximum. In plain terms, the filing deadline looks at what the law allows for that offense, not at what the prosecutor decides to do with it.
Two examples show how this works. A fourth or later DUI within 10 years is punishable by county jail or by a felony sentence under Penal Code section 1170(h), according to Vehicle Code section 23550. A first-offense DUI causing injury under Vehicle Code 23153 is punishable by county jail or state prison, according to Vehicle Code section 23554. Because each can be punished as a felony, each gets the three-year deadline under section 801, even in a case the prosecutor files as a misdemeanor.
Section 805 also limits this in the other direction: an offense that is necessarily included within the charged offense keeps its own deadline (Penal Code section 805). If a felony-eligible DUI is filed more than a year after the offense, a conviction for a lesser, misdemeanor-only DUI included within it can raise a limitations problem.
A crash that kills someone can lead to homicide charges with a longer deadline. Gross vehicular manslaughter while intoxicated is punishable by up to 10 years in state prison (Penal Code section 191.5), so the six-year deadline for offenses punishable by eight years or more applies (Penal Code section 800).
When the clock starts, and what stops it
The deadline runs from the date of the offense itself, not the date of arrest and not the date the DMV case is resolved.
What stops the clock is the commencement of the prosecution. Under Penal Code section 804, a prosecution is commenced when a complaint charging a misdemeanor is filed, when an indictment or information is filed, when the defendant is arraigned on a felony complaint, or when an arrest or bench warrant is issued that names or describes the defendant with the same particularity a charging document requires. For a misdemeanor, the filing date counts; for a felony complaint, the arraignment date counts unless a qualifying warrant was issued earlier. An issued warrant can satisfy the deadline before anyone appears in court.
The deadline is not paused or extended for any reason except those listed in Penal Code section 803. Two can matter in a DUI case: time during which a prosecution of the same person for the same conduct is pending in a California court does not count, and if the person is out of California when or after the offense is committed, up to three years of that time away does not count.
Not the same as your DMV deadline
This filing deadline is separate from the much shorter deadline in the license case: to have a DMV hearing before a suspension takes effect, you must request it within 10 days of receiving the suspension notice (Vehicle Code section 13558). The two deadlines run independently. For a broader overview of the court case, see the firm’s DUI process guide.
What to check
If timing might matter in your case, the details that decide the answer are the exact date of the alleged offense, whether you have prior DUI convictions within the last 10 years or any earlier felony DUI or vehicular manslaughter conviction (either can turn a later DUI into a felony-eligible offense), whether an injury or death is alleged, whether an earlier case over the same incident was filed, and any time you spent outside California afterward. The difference between a straight misdemeanor and a wobbler changes the deadline by two extra years, so this is worth confirming with counsel rather than assuming. The Law Offices of David S. Chesley can review the dates in your case and tell you where things actually stand: (800) 755-5174.