Understanding the statute of limitations in a criminal case can make the difference between a valid prosecution and a case that must be dismissed. In California, Penal Code § 802 governs the time limits for filing most misdemeanor charges. If you or someone you know is facing potential misdemeanor allegations, knowing how this law works is critical.
This comprehensive guide explains what California Penal Code § 802 says, how it applies, key exceptions, how time is calculated, and what it means for defendants.
What Is a Statute of Limitations?
A statute of limitations is a legal deadline. It sets the maximum amount of time prosecutors have to formally begin a criminal case after an alleged offense occurs.
If the government fails to file charges within that legally defined period, the defendant can ask the court to dismiss the case. In most situations, once the statute of limitations expires, the prosecution is permanently barred from moving forward.
Statutes of limitations exist for several important reasons:
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To protect individuals from defending stale claims
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To ensure evidence remains reliable
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To encourage timely investigations
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To promote fairness in the justice system
In California, different crimes have different limitation periods. Felonies, misdemeanors, and certain sex offenses are all treated differently under the law. Penal Code § 802 specifically addresses misdemeanor offenses.
The General Rule Under Penal Code § 802
Under California Penal Code § 802(a), prosecution for most misdemeanor offenses must be commenced within one year after the offense is committed.
This means the district attorney generally has one year from the date the alleged misdemeanor occurred to file charges in court.
If the prosecutor files after that one-year deadline, the defense can raise a statute of limitations objection and seek dismissal of the case.
What Does “Commenced” Mean?
A common question is: When is prosecution officially “commenced”?
In misdemeanor cases, prosecution typically begins when:
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A complaint is filed in court, or
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An arrest warrant or citation is issued based on a complaint
The key factor is whether formal legal action has started within the one-year timeframe.
Common Misdemeanors Subject to the One-Year Limit
Most standard misdemeanors fall under the one-year statute of limitations, including:
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DUI (Driving Under the Influence) charged as a misdemeanor
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Petty theft
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Shoplifting
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Simple assault
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Vandalism (misdemeanor level)
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Disorderly conduct
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Public intoxication
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Trespassing
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Misdemeanor domestic battery (in many cases)
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Driving with a suspended license
If one of these offenses allegedly occurred on March 1, 2025, the prosecutor would generally need to file charges by March 1, 2026.
Important Exceptions to the One-Year Rule
Although one year is the general rule, Penal Code § 802 includes important exceptions that extend the statute of limitations for certain types of misdemeanor offenses.
1. Crimes Involving a Child Under 14
Misdemeanor violations of Penal Code § 647.6 (annoying or molesting a child under 14) have a three-year statute of limitations.
The law provides this extended timeframe because crimes involving minors are often reported later due to fear, manipulation, or delayed disclosure.
2. Certain Professional or Licensing Violations
Some misdemeanor violations under California’s Business and Professions Code carry extended limitation periods ranging from one to four years, depending on the specific statute involved.
These often relate to:
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Contractor violations
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Real estate licensing violations
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Professional misconduct
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Fraud related to licensed professions
In some cases, the clock may begin when the violation is discovered rather than when it occurred.
3. Discovery Rule for Certain Offenses
For specific financial or regulatory offenses, the statute of limitations may begin running when the offense is discovered (or reasonably should have been discovered), rather than when it was committed.
In certain situations, this can extend the filing period up to three years from discovery.
This exception is particularly relevant in cases involving:
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Fraud
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Embezzlement
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Record falsification
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Regulatory violations
The discovery rule prevents individuals from escaping liability simply because misconduct was concealed.
What About “Wobbler” Offenses?
Some crimes in California are known as “wobblers.” These offenses can be charged either as misdemeanors or felonies, depending on the circumstances.
Here is where things become legally significant:
If an offense is legally punishable as a felony—even if ultimately charged as a misdemeanor—the felony statute of limitations may apply.
Under Penal Code § 801, most felonies have a three-year statute of limitations.
This means a crime that qualifies as a wobbler may not be restricted to the one-year misdemeanor deadline if it could have been prosecuted as a felony.
Determining which limitation period applies can be complex and often requires legal analysis.
When Does the Clock Start Running?
In most misdemeanor cases, the statute of limitations begins running on the date the alleged offense was completed.
For example:
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If an alleged petty theft occurred on January 10, 2025, the statute begins that day.
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The prosecution must generally file by January 10, 2026.
However, in cases involving delayed discovery or concealed conduct, the start date may differ.
Tolling: When the Clock Pauses
Certain circumstances can pause (or “toll”) the statute of limitations.
Examples may include:
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The defendant is out of state
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The defendant is not reasonably locatable
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Certain legal proceedings temporarily suspend time calculations
Tolling rules are governed by related provisions in the Penal Code and can significantly affect deadlines.
Why the Statute of Limitations Matters So Much
The statute of limitations is not a technicality—it is a fundamental legal protection.
If charges are filed after the applicable period expires:
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The defense can file a motion to dismiss
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The court may be required to throw out the case
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The prosecution loses its ability to proceed
For defendants, this can mean avoiding a criminal conviction, jail time, probation, fines, and a permanent record.
For prosecutors, it reinforces the importance of filing cases promptly.
Examples
DUI Case
A driver is arrested for misdemeanor DUI on June 5, 2025. If the prosecutor does not file charges by June 5, 2026, the case may be barred by the statute of limitations.
Shoplifting
An alleged shoplifting incident occurs in April 2024, but the store does not report it until May 2025. If no complaint is filed before April 2025, the prosecution may be time-barred unless an exception applies.
Wobbler Assault
An assault that could be charged as a felony occurs in 2024 but is filed as a misdemeanor in 2026. If the offense qualifies as a felony-punishable wobbler, the three-year felony statute may apply instead of the one-year misdemeanor limit.
Can the Statute of Limitations Be Waived?
In some situations, a defendant may knowingly waive the statute of limitations as part of negotiations or plea discussions. This is not common but can occur in strategic circumstances.
Waiving this protection should never be done without consulting an experienced criminal defense attorney.
Frequently Asked Questions
Does the statute of limitations apply after an arrest?
Yes. Even if someone was arrested, charges must still be formally filed within the required timeframe.
What if I never knew I was under investigation?
The statute of limitations still applies. It is measured from the offense date (or discovery date in limited cases), not from when you learn about the investigation.
Can charges be filed on the last day?
Yes. Prosecutors can file up to and including the final day of the limitation period.
What happens if the deadline is missed?
If properly challenged, the court may dismiss the case.
Key Takeaways About Penal Code § 802
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Most California misdemeanors have a one-year statute of limitations.
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Certain offenses involving minors have a three-year limit.
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Some professional and regulatory crimes have extended deadlines.
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Wobblers may fall under felony limitation periods.
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The clock generally starts on the offense date.
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Tolling rules can pause the countdown.
Understanding which rule applies requires careful legal evaluation.
Why You Should Speak With a Criminal Defense Attorney
Statute of limitations issues are technical and highly fact-specific. Miscalculating a deadline can have serious consequences.
If you are under investigation or facing misdemeanor charges, a knowledgeable defense attorney can:
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Review filing dates
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Analyze whether the case is time-barred
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File motions to dismiss when appropriate
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Protect your constitutional rights
An early review of the timeline can sometimes end a case before it truly begins.
Contact Southwest Legal Today
If you are dealing with a misdemeanor charge or believe the statute of limitations may have expired in your case, do not wait. The experienced criminal defense team at Southwest Legal understands California Penal Code § 802 and how to challenge untimely prosecutions. We carefully examine every case for statute-of-limitations defenses and fight to protect your record, your freedom, and your future. Contact us today for a confidential consultation and find out whether your case may be dismissed under California’s statute of limitations laws. Your defense starts now.