Menu 
Hedding Law Firm

Ways to Dismiss a California Criminal Case


There’s a whole host of ways that a criminal case can be dismissed.  First and foremost, sometimes people will get confused.  They might be being investigated for a crime.  Nobody has filed a crime against them and they’re talking about trying to get the whole thing dismissed when the prosecutor haven’t even gotten their hands on it yet.

Pre-Filing Intervention Before Charges Are Filed

So, that’s the first distinction to understand, which is that until the prosecutors have actually filed a criminal case, there’s no case to dismiss.  You’re just looking for a non-filing and a lot of times people hire me pre-filing to try to speak to the prosecutors and police and give them mitigating information — even exculpatory information that shows the person is innocent in order to avoid a filing altogether.

So, that wouldn’t be a dismissal because technically no case is filed.  It’s just a non-filing.  Sometimes cases are rejected by the District Attorney or City Attorney’s office because they don’t believe they can actually win the case.  Even though the police might think they have a good case, the police are not lawyers.

All they can do is arrest people for crimes, either take the person to court or cite the person into court or put a bail on a person, but ultimately, it’s the prosecutors who are the ones that decide whether or not a case is going to be filed and if it is filed whether or not it’s going to be dismissed.

Preliminary Hearing – 995 Motion to Dismiss

As far as dismissals go, there are a variety of ways to get a case dismissed.  One way I can think of right off the top of my head is, in a felony case after the case is filed, the person is arraigned, pleads not-guilty and then does the preliminary hearing in the case.Ways to Dismiss a California Criminal Case

This is basically a hearing in order to establish that there’s a prima facia case and that the prosecutors can prove their case to a reasonable suspicion — after that, if the person is held to answer and the new judge in the trial court looks at the case and the defense files what’s called a 995 Motion which is a motion to dismiss the case after a preliminary hearing, the judge could grant the case and dismiss the case.

In that scenario, the prosecutors could file the case one more time if it was dismissed again and that would be the end of it.  They wouldn’t be able to proceed anymore.

Another dismissal is there’s a judge in a jury trial could grant a defense attorney’s motion after the prosecutors have presented all of their evidence, to dismiss the case and then if the jury had been empaneled and the judge dismissed the case, under those circumstances, then the prosecutors could not refile the case and that would be the end of the case.

Negotiation with Prosecutor To Dismiss Case

Other times I’ve seen prosecutors get all the information from the police.  They review it.  They file a case.  I get hired on the case.  I go in there.  I review the evidence and I’m able to point out some information — whether it be through witnesses or other information to the prosecutors that they didn’t know about when they made the filing decision on the case — that the police were too lazy or simply just didn’t investigate, and then a lot of times under those circumstances, the prosecutor is realizing that they shouldn’t be prosecuting a particular defendant and will end up dismissing the case under those circumstances.

Sometimes as part of a diversionary deal cases can get dismissed.  Also, once a person completes their probation in a case — whether it be a felony or a misdemeanor, there’s motions that can be filed to get the case dismissed.

So, there’s a whole host of different ways that a case can be dismissed.  Also, when the prosecutors file the case, if you look at the complaint on its face and you look at the facts and you don’t really see that there’s a crime that’s been filed — even if what they put in there is true — in a criminal case the defense can file a demurrer and if the judge grants the demurrer then the case would be dismissed.

I can think of numerous ways and numerous Penal Code Sections and Evidence Code Sections that can be used to get a case dismissed.  Obviously, not all of these Sections apply to every single criminal case.  Each case is different.  Each case spins on its own facts.

So, if you’ve got a criminal case and you don’t think the case is properly filed against you — you think you’re innocent — then you need to get an attorney who knows how to win a case; knows how to get a case dismissed; and of course, the ultimate dismissal of a case is when the jury comes back with a not-guilty verdict.

The case is dismissed and you go home and you can tell everybody that you are a free man and you should have never been charged and that’s why you were found not guilty.

Share this Article

About the Author

Named Top Los Angeles Criminal Attorney by LA Times and named one of the Top 100 criminal defense attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.