Many of those arrested for DUI are finding that they are not immediately charged with DUI. In fact, on both sides of the state line, many of those arrested for DUI are finding that they are waiting weeks – and even months – before they are formally charged. The delay between being arrested and being formally charged is one that causes a significant amount of uncertainty and anxiety for those wondering what they will ultimately be charged with, when they will be charged, and what kinds of penalties they may face.

As an attorney representing clients suspected of DUI, I often explain to clients that there is little a lawyer can do until charges are formally filed against a client. Until charges are filed, there is no actual case against the client; no case number to reference; and any advice given is only general because specific advice on the course of defense cannot be given until the charges against a client are certain and thus known.

But how much can the prosecution legally delay in bringing a case before the delay violates a defendant’s rights? In Missouri, the length of time allowed by statute depends on the severity of the crime. For misdemeanor DUI cases (the first or second DUI for a client), the prosecution will generally have one year to file charges against the defendant; the time increases to either three or five years for felony DUI cases, depending on the level of the felony. In Kansas, regardless of whether the DUI is a misdemeanor or a felony, it must be formally charged within 5 years.

These time limits mean that a person arrested for DUI could end up waiting a very long time to be formally charged. Realize, too, that these time limits do not apply to a client’s license suspension and that the time limits pertaining to the administrative remedies before each State’s Department of Revenue are different. In Missouri, if the client has submitted to sobriety testing, the client will have 15 days from the date of arrest to request an administrative hearing, otherwise the client’s license will automatically be suspended. In Kansas, a client has 14 days.

Sometimes, a person arrested for DUI will hire an attorney immediately after arrest despite charges not having been formally filed. In such cases, the attorney should immediately request an administrative hearing. If the Department of Revenue receives the defendant’s request, but has not received paperwork from the arresting officer or court handling the case, the defendant will be issued a temporary driving permit and the administrative case will be put on hold for a limited amount of time. If the Department of Revenue does not receive the paperwork regarding the arrest from the prosecution during the time period set by the Department of Revenue, the defendant’s administrative case will be dismissed for lack of evidence. This does not mean, however, that the criminal case against the defendant will be dismissed also.

Prosecutorial delays may be an increasing problem in the coming months and years as issues with governmental budget shortfalls continue. If you have been arrested for DUI but have not been formally charged and are facing uncertainty about your future, contact AGR Legal Services, LLC for a free consultation.