October 11, 2019 | Criminal Defense

If you’re going to court for criminal charges, the best you can hear is “case dismissed.” A dismissal means the case has been thrown out without a conviction. This is good news if you are charged with anything from a first time DUI to domestic violence or theft.

However, there are different types of dismissals and it is important to pay attention to differences.

Dismissal With or Without Prejudice

If a case is dismissed with prejudice, then the charges are dropped completely. A dismissal with prejudice is a final decision on your criminal case. Once dismissed, the case will have no effect on your criminal record.

On the other hand, a dismissal without prejudice leaves the door open for the prosecutor to refile the case. This causes a delay in the proceedings, but there is still the possibility of a criminal conviction.

When Can a Criminal Case Be Dismissed?

A criminal case may be dismissed at any time during the proceedings. The most likely time, though, is at a motion hearing prior to trial.

If you have been charged with a crime, your defense attorney may move to dismiss the case before trial for one of many reasons, just a few of which may include:

  • The prosecution has insufficient evidence
  • Evidence was obtained illegally–for example, without a proper search warrant
  • The arrest was not based on probable cause
  • Evidence was not handled properly or a BAC test was not administered properly

Whatever the reason, your lawyer will have the chance to argue in front of the judge for a dismissal.

What Determines Whether a Dismissal is With or Without Prejudice?

When a case is dismissed, the judge decides whether it is dismissed with or without prejudice. The decision is usually a question of whether the problems with the prosecutor’s case can be corrected.

For example, if the police obtained key evidence by searching your house without a warrant, the case is likely to be dismissed with prejudice. This is because the illegal evidence cannot be introduced at trial and, without it, there won’t be a conviction.

If, however, the prosecutor’s evidence was obtained properly, but is simply too weak to support a conviction, a dismissal without prejudice is likely. This gives the district attorney’s office a chance to gather more evidence against the defendant before refiling the case.

What Happens After a Dismissal Without Prejudice

If your criminal case is dismissed without prejudice, your attorney has done a good job. But, it is not time to relax just yet. The prosecutor can, and in many cases will, bring the charges again.

If the reason for the dismissal without prejudice was weak evidence, the prosecutor will probably go back to work investigating the crime. If additional evidence is uncovered, they will refile the criminal case against you.

Additionally, the prosecutor might refile the case with lesser charges. Perhaps the evidence wasn’t enough to support a conviction for domestic violence, but will support assault charges. The state can refile and move forward with the lesser charge.

Sometimes refiling the case is either impossible or impractical. For example, the statute of limitations may run before the prosecutor has the chance to refile. In that situation, the case is over whether the dismissal was with prejudice or without.

Also, having to refile the case causes delays for the prosecution. This can make it more difficult for them to prove their case. As time goes by, evidence of a crime tends to become harder to discover. Even police officers may destroy evidence related to a crime if the DA’s office hasn’t requested it within a certain amount of time.

What Should I Do if My Case Was Dismissed Without Prejudice?

A dismissal without prejudice can cause confusion when the defendant thinks the charges have been completely dropped. If the prosecutor refiles a case against you, it can come as a shock.

Additionally, defense attorneys are not always notified when charges are refiled against their clients.

If you receive a dismissal without prejudice, you must remain vigilant. Make sure the court has your correct address and keep an eye out for refiled charges. If you receive anything from law enforcement or the court, inform your defense attorney right away.

Eventually, your attorney should be able to tell you whether the case will be refiled against you or if you can truly put the matter behind you.