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What is a Criminal Case “Dismissed Without Prejudice?”

Posted by Dmitry Gorin | Jun 01, 2024

A criminal case "dismissed without prejudice" is a legal term, meaning it's currently dismissed but could still be refiled later, known as a temporary dismissal. In other words, the district attorney can refile their criminal charge, often after fixing any issues with the initial filing.

In contrast, a criminal case "dismissed with prejudice" cannot be refiled but permanently dismissed. The charges cannot be brought back to court, even if new evidence emerges, and refiling charges would be considered double jeopardy.

What is a Criminal Case “Dismissed Without Prejudice?”
A case "dismissed without prejudice" means it is currently dismissed but could be refiled later.

Dismissal with prejudice usually happens when a judge determines that the case has no merit or has serious procedural errors.

When the criminal case is refiled, it could be filed in a different court, against additional people, or amended to include new allegations. However, the case still must be refiled before the applicable statute of limitations has expired. A dismissal without prejudice could be requested by the prosecutor or ordered by the court.

These criminal cases are commonly known as voluntary dismissal without prejudice. The prosecutor might ask the judge to dismiss the case without prejudice. Thus, if the judge agrees, they will dismiss it so it can be filed later.

A few common reasons include new facts that make it necessary to change the criminal charges, such as refiling more or less severe charges, adding new defendants to the criminal case, or filing the case in a different court.

In contrast, an involuntary dismissal is the legal term for when the trial court judge dismisses the case without being asked by the prosecutor. Still, the prosecutor can refile the case later after addressing the issues listed by the judge.

If you're charged with a crime, your case can be resolved by being convicted by pleading guilty, a plea bargain, or a jury verdict. A jury acquittal can also resolve it, the prosecution dropping the charges for different reasons, or the judge may dismiss the charges (with or without prejudice). Let's review further below.

Dismissed Without Prejudice - Quick Facts

  • Your case is halted, and you're no longer officially accused of a crime.
  • The prosecution can reinstate the charges if they deem it necessary.
  • A case dismissed "without prejudice" is often only temporarily dismissed.
  • Criminal cases could be refiled in a different court, filed against others, or amended to include new criminal charges.
  • It must be refiled before the applicable statute of limitations has expired.
  • A common reason to ask for a dismissal without prejudice is that new facts have emerged that necessitate changing the criminal charges.
  • Charges can be dismissed without prejudice at the prosecutor's request, or they may be dismissed at the judge's discretion.
  • It does not mean you've been cleared of any suspicion or that you've been declared not guilty.
  • It's often considered a "temporary dismissal" because it's common for the district attorney to refile the charges later.
  • You should be prepared for the criminal charges to be reintroduced.
  • It's usually a strategic decision when prosecutors request dismissal without prejudice, not because they're convinced they have no case.

Why Do Prosecutors Ask for a Dismissal Without Prejudice?

Prosecutors might have numerous reasons for asking the judge to dismiss charges without prejudice, such as the following:

  • Insufficient Evidence: The DA might determine they do not have sufficient evidence to secure a conviction and need more time to build their case.
  • Pending Further Investigation: In some cases, an ongoing criminal investigation might produce more substantial evidence in the future. Asking for a temporary dismissal allows time for further investigation.
  • Procedural Errors: If there were errors in how evidence was obtained or gathered, or if the defendant's rights were violated during the arrest or investigation, they might want time to address these issues.
  • Legal Strategy: A dismissal without prejudice could be part of a legal strategy, such as dismissing less serious charges to focus on more serious ones, with the option to refile the lesser charges later if needed.
  • Adding New Defendants or Charges: The district attorney may want to dismiss the current case to refile with additional defendants or new criminal charges added to the case.
  • Change of Venue: Prosecutors may want the current case dismissed so they can refile in a different court or jurisdiction.
  • Case weakness. A prosecutor may choose to dismiss a case without prejudice to have time to address a weakness or issue with their case.
  • Changing Charges. Maybe the DA decided to dismiss an assault with a deadly weapon case to a less serious simple assault.

Why Do Judges Decide to Dismiss Without Prejudice?

The presiding judge over the criminal case can also dismiss it without prejudice independent of the prosecution, called an "involuntary dismissal without prejudice," for any of the following reasons:

  • Legal or procedural errors in the current criminal case.
  • Violations of your rights, such as an illegal search and seizure.
  • Improper conduct by prosecution
  • The judge decides the venue is incorrect for the case.

Suppose a judge dismisses the case without prejudice. In that case, they often leave the door open for prosecutors to correct errors, make changes, gather new evidence, and refile the charges, possibly in a different court.

How Does it Affect the Statute of Limitations?

Recall from above that a criminal case that is "dismissed without prejudice" means it is currently dismissed, but the prosecutor could decide to refile the charges later.

Statute of Limitations

A criminal case dismissed without prejudice does not affect the statute of limitations for your alleged crime. It does not stop the clock or reset it. It's as if the original charges were never filed.

For example, assume the statute of limitations for your crime is three years (felony), and prosecutors file charges against you a year after the alleged crime.

Suppose the case is dismissed without prejudice. In that case, the district attorney will have another two years to refile charges before the statute of limitations expires.

Contact our California criminal defense lawyers for more information. Eisner Gorin LLP has offices in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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