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What Does it Mean to Dismiss Without Prejudice?

At a preliminary hearing, which usually occurs some months after the arraignment, the prosecutor essentially previews the evidence to be used against the defendant at trial. The defense attorney then has a chance to poke holes in the prosecutor’s evidence, perhaps by questioning the basis for the stop or the probable cause for the search.

Based on this preliminary back-and-forth, the judge decides if there is sufficient cause to hold a trial. If the judge determines that there is insufficient evidence, the case is normally dismissed, and prosecutors may or may not be able to refile charges. There are two kinds of dismissal: without prejudice and with prejudice.

Dismissal Without Prejudice

Even though the name implies that the case is “gone forever,” a dismissal without prejudice essentially means “try again.”

If the state’s evidence is weak at the preliminary hearing and the defendant makes a motion to dismiss, the judge often grants the motion without prejudice to refile. So if your criminal case is dismissed without prejudice, the prosecutor may choose to refile the charges. What that said, the state actually has several options:

• Change the Charged Offense: Sometimes, the charge does not fit the facts. For example, over-aggressive prosecutors sometimes file domestic violence charges when there was no protected relationship between the defendant and alleged victim. For example, prosecutors nearly always assume that men and women are either married or dating, even if the facts only marginally support such conclusions.

• More Evidence: The standard of proof is very high in criminal court, and there is a big difference between establishing probable cause for an arrest and proving guilt beyond a reasonable doubt. For example, in our hypothetical drug case, the “field test” procedure and/or results may have been so shaky that the judge isn’t convinced that the substance tested was actually cocaine, so the prosecutor needs a chemist to testify to that effect.

• Better Law: The law is constantly evolving. Procedures that were only somewhat legal at one point may be entirely acceptable a few months later, and the reverse also sometimes applies.

Although prosecutors can re-file charges in these situations, that’s not always the outcome. Dismissals without prejudice (DWOP) do not toll the statute of limitations, so the clock keeps ticking while prosecutors start over from square one. There is often significant time pressure, as several months, or even longer, have normally elapsed since the date of the offense. Moreover, much of the physical evidence from the scene is probably gone and most officers destroy their notes shortly after they file their reports.

Sometimes, if prosecutors identify a defect before the case goes to trial, DWOPs are voluntary. Assume that prosecutors subpoena a chemist in response to the judge’s concerns about the evidence. But the chemist is not there on the day of trial, and the prosecutor knows from prior experience that the judge is unlikely to put off the hearing date. So, rather than go to trial without the chemist and hope for the best, the prosecutor may voluntarily dismiss the case, refile the charges later, and start over. Or, if the prosecutor identifies a variance, a concept that’s discussed below, the same thing might happen.

Dismissal With Prejudice

Sometimes, but not often, there is an incurable defect in the state’s case that merits a “case closed” dismissal. Time is one such incurable defect. If the statute of limitations has expired or the defendant’s constitutional right to a speedy trial has been denied, nothing can turn back the clock and nothing can revive the prosecutor’s case. Similarly, officers cannot go back and obtain search warrants because the judge rules that they were necessary. Likewise, if investigators illegally questioned the defendant, they cannot go back in time and allow the defendant to call a lawyer.

The variance problem often comes up in these contexts as well. In a drug case, assume that the officers seized cocaine but the charging instrument alleges possession of heroin. This inconsistency is a fatal variance, because there is no evidence to support the heroin possession charge. A variance is not necessarily fatal, because of the idem sonans rule. In Latin, this phrase means “sounds alike;” in Legalese, it means “close enough.” The rule normally applies to typographical errors (e.g. David Brown instead of David Browne).

Typically, if the prosecutor spots a variance far enough in advance of trial, amending the charging instrument to conform with the evidence is a relatively simple procedure. Some judges even allow such amendments on the day of trial, in some cases.

Different types of dismissals have different effects on Los Angeles County prosecutions. For a free consultation with an experienced criminal defense attorney in Los Angeles, contact the Rodriguez Law Group. Home and jail visits are available.

To learn more, call our Los Angeles criminal defense law firm at 213-995-6767 or visit our contact us page to send us an email.