What Does it Mean to Dismiss Without Prejudice?

At a time of dwindling resources both in terms of physical facilities and prosecutor/judicial staff, California’s criminal courts process over six million cases a year. Even though the vast majority of these cases are resolved by plea bargain, and many of these plea-bargained cases are settled very early in the process, there are still a staggering number of cases to deal with, and both prosecutors and judges reduce this number through voluntary and involuntary dismissals.

Not all judicial dismissals are created equally, and the type of disposition has a significant bearing on future criminal proceedings, if there are any.

Dismissal Without Prejudice

When the teacher says “class dismissed,” that dismissal is usually only temporary, because classes will resume the next day, after the break, or whatever. Similarly, when the judge says the case is dismissed, the dismissal is only temporary if it is without prejudice.

Many times, prosecutors voluntarily dismiss cases without prejudice if they identify a weakness in the pleadings or the evidence that they need to correct. Other times, a prosecutor will voluntarily dismiss one case (such as battery) to file a more serious case (like aggravated battery) or a less serious one (such as simple assault). Finally, many prosecutors voluntarily dismiss cases if they are not ready for trial when the judge calls the case and they know or suspect that the judge will not put off the trial date.

Voluntarily dismissals without prejudice are strictly for the convenience of the prosecutor. There are situations when the defense attorney would prefer another outcome; for example, if the state does not have an important witness at trial, the prosecutor probably won’t meet the burden of proof and the judge may throw out the case. But, under the Code of Criminal Procedure, prosecutors basically have discretion to voluntarily dismiss any case at any time.

A dismissal without prejudice does not toll the statute of limitations. Assume officers arrested the defendant for shoplifting in January 2012 and prosecutors formally filed charges the following June. Just before the case went to trial in June 2013, a key witness moved away and prosecutors voluntarily dismissed the case without prejudice. If they did not re-file charges by January 2014, the statute of limitations would have run and the defendant would be fully released.

Dismissal With Prejudice

These dispositions are nearly always involuntary, because if a case is dismissed with prejudice, charges cannot be refiled. Typically, the judge takes this action if there is an incurable defect in the case. Many judges dismiss cases with prejudice because of procedural issues.

If officers did not have probable cause when they obtained a search warrant, they cannot travel back in time and present more evidence to the judge who issued the warrant. Or, there may be a fatal lack of evidence. To return to the battery example, if the defendant and alleged victim were on their first date, they are neither married nor dating and therefore the facts do not support domestic battery. If that’s what the prosecutor charges, that case will be dismissed with prejudice.

Even in these instances, prosecutors may be able to revive the charges without running afoul of the double jeopardy rule (a person cannot be twice “put in jeopardy” for the same offense) by re-filing different charges that the facts also support.

For prompt assistance from an experienced criminal defense attorney in San Diego, contact the Law Office of Vikas Bajaj, APC today, because the sooner you call, the sooner we can get started on your case.


Criminal Law