In addition to counseling and representing clients in Entertainment and Copyright matters, I also frequently represent clients in Criminal matters. Recently I’ve been getting a lot of questions concerning the “Statute of Limitations” from clients who have learned that there is an old, outstanding warrant for them related to their particular indiscretions of youth. The question becomes, “Can they still prosecute me for something I’ve done years ago?”
What most people refer to as “The Statute of Limitations” in a criminal case is actually a statute that controls how long the state has to begin a Criminal Proceeding. That time will vary depending on the seriousness of the case, and whether or not the Defendant has ever been arrested for the allegation. For Ordinance Violations and Traffic Offenses, the time limit is one year after the alleged offense. For 2nd and 1st Degree Misdemeanors, the time frame is 2 years from the alleged date of offense. For 3rd Degree and 2nd Degree Felonies, the time frame is generally 3 years from the alleged date of offense; and for 1st Degree Felonies the time frame is generally 4 years. Felonies classified as Capital Offenses have no time limit.
If a warrant is issued for your arrest, following some sort of investigation, and you have not been arrested for the offense, that warrant must be served on you inside the “Statute of Limitations” regardless of how long after the alleged offense the warrant was issued. For example, if you are to be charged with Battery, as a 1st Degree Misdemeanor, and you are not arrested at the time of the offense or during the investigation, the warrant must be served on you inside two years. There is case law supporting the extension of that time in cases where the Defendant may be actively avoiding service; but in those instances, the State must show that it made a Diligent Search for the Defendant in an effort to serve the warrant. Simply going to the last known residence once or even twice is not enough.
If you have never been arrested for the offense, and you were not served with the warrant inside the “Statute of Limitations” your case can probably be dismissed. To do so, you should contact a Criminal Attorney familiar with these concepts and have him or her fully examine your case and circumstances.
If you are arrested for an offense during the course of the investigation, you are presumed to have been put on notice that you are subject to prosecution. Therefore, the State is not required to provide you with actual notice of the formal filing of charges in order to initiate the criminal proceeding. In this instance, to satisfy “The Statute of Limitations”, all the State must do is file formal charges inside the allotted time. For a 1st Degree Misdemeanor, that time is 2 years.
The key to understanding this concept is to remember that law enforcement does not charge defendants, the State Attorney does. If law enforcement arrests you for an alleged Simple Battery and you go to jail and post bond, or you are issued a Notice to Appear, you have an obligation to monitor your case. If after investigation the State Attorney decides to file charges for Aggravated Battery (a 2nd Degree Felony), they are free to do so, provided that they file those charges inside 3 years of the offense. Since you were arrested, you are aware of the potential for prosecution, so the State does not have to actually serve the warrant for the proceedings to have been properly initiated…the warrant will be good until it is served, and once served the prosecution can continue.
Again, in this instance (you were arrested and formal charges filed later, but inside your Statute of Limitations) you should contact and retain a Criminal Attorney familiar with these concepts as there may be other statutory and factual based defenses that you can employ.
In either event, regardless of whether you have been properly noticed of the intent to prosecute, while the warrant goes un-served, the warrant itself is still “good”, and you still have an obligation to respond to the warrant (i.e.: turn yourself in). Law enforcement will exercise the warrant (arrest you) if they discover a warrant has been issued for your arrest…regardless of how old it is. Even if it is too late for the State to prosecute you, the warrant for your arrest is still enforceable. If you coordinate with a Criminal Attorney familiar with these issues, you may be able to control how and when the warrant will be executed. In some circumstance, your attorney may be able to arrange to have you turn yourself into the Court at the same time that he makes his argument to Dismiss the case, which could leave you never seeing the inside of a jail cell. Alternatively, if law enforcement exercises the warrant against you, you may spend weeks or months in custody while trying to hire an attorney and scheduling your Motion to Dismiss.
The bottom line is if you discover there is a warrant for your arrest, don’t ignore it…contact an attorney and deal with it. Otherwise, the warrant won’t go away without your arrest.
