What Counts as Excludable Time Under the Speedy Trial Act

Excludable time under the Speedy Trial Act is any period the statute removes from the count when measuring whether the government met its 30-day deadline to indict or its 70-day deadline to bring a defendant to trial. Some exclusions happen automatically the moment a triggering event occurs. Others require a judge to make findings on the record. Both types are listed in 18 U.S.C. § 3161(h), and they apply to the pre-indictment clock and the pre-trial clock alike.¹

The Two Clocks the Exclusions Apply To

Under § 3161(b), the government has 30 days from arrest or service of summons to file an indictment or information. If the charge is a felony and no grand jury has been in session during that window, the deadline extends by another 30 days.¹

Under § 3161(c)(1), trial must begin within 70 days of either the indictment or the defendant’s first appearance in the court where the case is pending, whichever comes later.¹

Neither window usually runs straight through. The exclusions in § 3161(h) apply to both.¹

Exclusions That Happen Automatically

Pretrial Motions

Pretrial motions are the most frequent reason the clock stops. Under § 3161(h)(1)(D), the entire period from the filing of a motion through the conclusion of the hearing on it is excluded automatically.¹ Motions to suppress evidence, discovery disputes, and jurisdictional challenges all qualify. No one needs to ask the judge to pause the clock; filing the motion does it.

When a motion doesn’t require a hearing and the judge takes it under advisement, § 3161(h)(1)(H) caps the exclusion at 30 days.¹ If the judge rules within that window, the clock resumes the next day. If 30 days pass without a ruling, the clock starts running again regardless.

Multiple motions filed in sequence can keep the clock paused for months. The clock only runs during gaps when nothing is pending.

Plea Agreements and Deferred Prosecution

Time the court spends considering a proposed plea agreement is excluded under § 3161(h)(1)(G).¹ Note the limit: this covers judicial review of a submitted deal, not the negotiation itself. Delays caused by active plea bargaining between the parties do not automatically stop the clock. To pause the deadline during negotiations, someone has to request an ends of justice continuance.

Deferred prosecution agreements get their own exclusion under § 3161(h)(2). When the government agrees in writing to defer prosecution so the defendant can demonstrate good conduct, and the court approves the arrangement, the entire deferral period is excluded.¹

Competency Evaluations

When a judge orders an evaluation of a defendant’s mental competency or physical capacity, the clock stops under § 3161(h)(1)(A).¹ The pause covers the evaluation, any related hearings, and the court’s review of the findings, ending only when the court enters a final competency determination.

Transport and Transfer

Transporting a defendant for an examination or from another district triggers an exclusion under § 3161(h)(1)(F), but travel time beyond 10 days from the date of the transport order is presumed unreasonable. Proceedings to transfer a case between districts also stop the clock under § 3161(h)(1)(E).¹

Interlocutory Appeals

An interlocutory appeal is a challenge to a judge’s ruling filed before trial concludes. Under § 3161(h)(1)(C), the clock stops for the entire duration of that appeal.¹ Either side can trigger it. If the prosecution appeals a suppression ruling, for example, the pause typically lasts until the higher court’s decision is final and the case returns to the trial court.

Absent or Unavailable Defendants and Witnesses

The clock stops when a defendant or an essential witness is absent or unavailable under § 3161(h)(3). The statute treats those terms differently. A person is “absent” when their whereabouts are unknown and they are either trying to avoid prosecution or cannot be found despite diligent efforts. A person is “unavailable” when their location is known but their presence for trial cannot be obtained through reasonable effort, or they resist appearing.¹ A witness abroad who refuses to travel would be unavailable; a hospitalized defendant would too. A defendant who flees can’t run out the clock by hiding. The government generally must show reasonable efforts to locate the person for the exclusion to hold.

Co-Defendants

Under § 3161(h)(6), when defendants are joined for trial, a reasonable period of delay is excluded for one defendant if a co-defendant’s clock hasn’t expired and no motion to sever has been granted.¹ One co-defendant’s motions or continuances can effectively pause the clock for everyone joined in the case. A defendant who wants to avoid that spillover has to move to sever and be tried separately.

Exclusions That Require a Judge’s Findings

The broadest exclusion is the ends of justice continuance under § 3161(h)(7). A judge can grant one on the court’s own initiative or at either party’s request, but only after finding that the benefits of the delay outweigh the public’s and the defendant’s interest in a speedy trial. The reasons must be stated on the record, orally or in writing.¹ Without those on-the-record findings, the continuance doesn’t count and the time isn’t excluded. Judges most often get reversed on appeal for granting a continuance and failing to articulate the reasons.

The statute lists factors the judge should weigh, including whether the case is so unusual or complex “due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law” that the normal limits are unreasonable, and whether denying a continuance would deny either side’s counsel “the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.”¹

Two grounds are off-limits. A judge cannot grant an ends of justice continuance because of general congestion on the court’s calendar, and cannot grant one because the government failed to prepare diligently or obtain available witnesses.¹ A backlogged docket is not the defendant’s problem, and the government doesn’t earn extra time by failing to do its homework.

What Happens When the Clock Runs Out

If the government fails to indict within the 30-day window as adjusted for excludable time, the complaint must be dismissed. If trial doesn’t begin within the 70-day window as adjusted, the indictment must be dismissed on the defendant’s motion. Whether that dismissal is with or without prejudice is a separate question. Dismissal with prejudice permanently bars re-filing. Dismissal without prejudice lets the government try again. The court weighs the seriousness of the offense, the facts leading to the delay, and the impact reprosecution would have on the Speedy Trial Act’s purpose.²

One procedural trap matters as much as the math. The defendant must move for dismissal before trial starts or before entering a guilty plea. Failing to raise the issue in time is a waiver, and once the trial begins or a plea is entered, the right to dismissal under the Speedy Trial Act is gone.²

1
Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions
2
Office of the Law Revision Counsel. 18 USC 3162 – Sanctions