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What If a Criminal Case Is “Dismissed Without Prejudice?”

Posted by Sam Israels | Apr 27, 2024

A common question is, what does it mean when your criminal charges were “dismissed without prejudice?” Criminal cases can be dismissed “with prejudice” or “without prejudice.”

Dismissal without prejudice is a legal term meaning that criminal charges have been dismissed but can be refiled by the district attorney at some point. Charges may be dismissed without prejudice at the prosecutor's request, or they may be dismissed at the judge's discretion.

For a criminal case to be dismissed “with prejudice” means that it is dismissed permanently, it cannot be brought back to court, and the charges cannot be refiled. A “dismissed with prejudice” case is completely and permanently over.

What Does “Dismissed Without Prejudice” Mean?
A criminal case "dismissed without prejudice" can be refiled later by the prosecutor.

The charges cannot be brought back to court, even if new evidence emerges, and refiling charges would be considered double jeopardy. Dismissal with prejudice usually happens when a judge determines that the case has no merit or has serious procedural errors.

In either case, it does not necessarily mean you were cleared of suspicion or deemed not guilty. It simply means the current case against you is not going forward, which could be for several reasons. Defense lawyers often view this move as a "temporary dismissal" because it is pretty standard for prosecutors to refile criminal charges after a case is dismissed without prejudice.

In other words, this temporary dismissal means the district attorney can refile charges or bring the case to another court, but it does not overturn the statute of limitations

A case may be dismissed without prejudice for several reasons. A prosecutor may choose to dismiss a case without prejudice to have time to address a weakness or issue with their case. 

Another reason a prosecutor may dismiss a case might be to file a new one that is more or less serious than the original. For example, perhaps the DA wants to dismiss an assault with a deadly weapon case as a simple assault.

A judge may dismiss a case without prejudice to allow a particular side time to address an issue with the case before trying the case again. Whether a case is dismissed with or without prejudice may depend on whether the prosecutor or a judge dismisses it and whether the dismissal is voluntary or involuntary.

How Are Criminal Cases Resolved?

Suppose you are charged with one or more criminal offenses. In that case, it can be resolved in different ways, such as the following: 

  • You are convicted of the crime by pleading guilty, no contest, a plea bargain, or a jury verdict.
  • A jury can acquit you.
  • The district attorney might drop the charges or
  • The judge might dismiss the charges (with or without prejudice).

As noted, if your criminal charges are dismissed without prejudice, your case will not move forward, and you will no longer be charged with a crime. However, the prosecutor could refile the exact charges against you later if they choose to do so.

Simply put, a criminal case dismissed without prejudice can be refiled later and is only temporarily dismissed but must be refiled before the statute of limitations has expired.

In contrast, criminal cases dismissed with prejudice cannot be refiled and dismissed permanently.  A case dismissed “without prejudice” is often only temporarily dismissed.  Criminal cases could be refiled:

  • In a different court,
  • Filed against other people or
  • Amended to include new criminal charges. 

What is a Voluntary Dismissal? 

Often called a voluntary dismissal without prejudice, the district attorney could ask the judge to dismiss the case without prejudice. Some reasons to ask for a dismissal without prejudice include the following:

  • New evidence was discovered, requiring a change to the criminal charges or
  • New defendants will be added to the criminal case.
  • The prosecutor wants to refile the case with less or more severe criminal charges or file a case in a different court.
  • The prosecutor is not ready to go to trial at the date called by the judge.

In other words, a voluntary dismissal serves the interests of the prosecutor.

What is an Involuntary Dismissal?

A judge dismisses a criminal case dismissed involuntarily and might be dismissed with or without prejudice. If the judge determines that there is a good reason why the case should not be tried, it is dismissed over the prosecution's objection.

A judge might dismiss a case without prejudice to allow errors in the case presented to be addressed before it is brought back to court.  Perhaps the complaint is inadequate, or the court does not have jurisdiction to hear the case.

A judge will dismiss a criminal case with prejudice if they find a reason why it should not proceed and should be permanently closed. This could be for many reasons, especially if chances to fix the issues were already given. After an involuntary dismissal without prejudice, the prosecutor can fix the errors that led to the dismissal and then refile the case.

Why Would a Prosecutor Ask for Dismissal Without Prejudice?

Prosecutors might have numerous reasons for requesting a case dismissal without prejudice, also called voluntary dismissal, including the following:  

  • They determined they do not have enough evidence to obtain a conviction and need time to strengthen their criminal case.
  • An ongoing investigation might produce more substantial evidence, and they need more time and could file charges later.
  • A prosecutor may choose to dismiss a case without prejudice to have time to address a weakness or issue with their case.
  • Suppose there were errors in collecting evidence or violating a defendant's rights during the arrest or investigation. In that case, the prosecutor might ask for a dismissal without prejudice while addressing these issues.
  • Prosecutors might use dismissal without prejudice as a legal strategy. For instance, perhaps they have decided to dismiss less serious charges to file serious ones based on the new evidence or information.
  • Prosecutors may want to dismiss the current criminal case to refile it with additional defendants or charges added.
  • Prosecutors may want the current case dismissed so they can refile in a different court in another jurisdiction.

In any of the above examples, it's usually a strategic decision when prosecutors request dismissal without prejudice. However, this does not always mean they do not have a solid case against you. Therefore, you must be prepared for the charges to be reintroduced.

Why Would a Judge Would Decide to Dismiss Without Prejudice?

The presiding judge over your criminal case also has the discretion to dismiss your case independently without prejudice, called an "involuntary dismissal.” Some of their reasons include the following:

  • Procedural or legal errors in the criminal case,
  • Violations of the defendant's rights,
  • Illegal search and seizure,
  • Prosecutorial misconduct,
  • The venue is incorrect for the case.

As noted, when a judge dismisses the case without prejudice, the district attorney can correct errors, make changes, obtain new evidence, and refile the charges later, even in a different court.

An involuntary dismissal is the legal term for when the trial court judge dismisses the case without being asked by the prosecutor. This can be done without prejudice, allowing the prosecutor to refile the case.

How Does It Affect the Statute of Limitations?

A dismissal without prejudice has little or no effect on the statute of limitations for your alleged crime. It does not stop the clock nor reset it. For example, suppose the California statute of limitations for your offense is three years, the standard time for a felony, and the district attorney files charges one year after the alleged crime. 

If your case is dismissed without prejudice, prosecutors will still have another two years to refile before the statute of limitations expires. Contact our California criminal defense lawyers for more information. Cron, Israels & Stark is based in Los Angeles, CA.

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About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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