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What Does A Dismissal Without Prejudice Mean in California?


This has to do with a judge or even a party, the prosecutor, dismissing a case. But, it gives them the ability if it’s dismissed without prejudice, to refile the case at another time if they have the grounds to do so. Usually though when I see this term, dismissed without prejudice, it usually has to do with a civil case. As far as criminal cases go, when the prosecutors decide to dismiss a case, they can still refile it. I guess a judge could dismiss the case in such a way that they could block the prosecutors from refiling it, but they rarely ever are willing to do that and they really don’t have the power to do it.

When it comes to a felony case in Los Angeles County, if a case is dismissed once, it could be refiled again, and if it gets dismissed a second time, the prosecutors can’t bring it back again. Of course, that goes up against also if the felony case goes to trial and the jury panel is sworn in, at that point jeopardy attaches, and if the case gets dismissed for some reason, it cannot be refiled. That would be double jeopardy to do that.

So, there are all sorts of different ways and Penal Code sections that permit a dismissal on a case, but some of the terms – as far as criminal and civil – just don’t apply to each other. So, dismissing a case with prejudice is usually a civil remedy where you want the judge to dismiss it with prejudice, because then the other party can’t bring it back up against you again. In criminal, if a case gets dismissed by a judge – whether it be a misdemeanor or felony in Los Angeles County, the prosecutors usually are not going to refile that case unless they were missing some important piece of evidence at the time that the judge dismissed the case. Now they’ve got that piece of evidence and now they want to proceed with the case.

A lot of times when I see them refiling cases that get dismissed, they’re very serious cases. They don’t usually mess around with not so serious cases. Once they get dismissed, that’s it, they move on. The prosecutors in Los Angeles County are very, very busy so they don’t always have the time to keep refiling cases and dealing with the cases. Usually, when I see them filing a case for the second time, it’s either a very serious situation, or if the prosecutor becomes emotionally involved with the case – angry at the defendant, angry at the attorney – I’ve seen then that they start refiling cases. This really borders on prosecutorial misconduct in Los Angeles if they start doing stuff like that. They really shouldn’t be getting emotional about it. They’re in the business of seeking justice. Vengefully, refiling cases against people is not appropriate.

Of course, trying to prove that is a different story. The bottom line is, if a judge dismisses a case and the prosecutors refile it, if it goes back to the same judge or if another judge gets it, they’re going to be looking and saying, wait a minute, this case has already been dismissed. What new do you have to bring to the table? Otherwise, I’m going to dismiss it again. We’re looking for consistency here. If we dismiss it once, if you don’t have different evidence that makes the case stronger against the defendant then we’re going to dismiss it again. So, it’s a dangerous game for them as well, to play that game of continuing to refile cases against somebody.

But listen, the rules are the rules. People get angry when cases don’t get filed right away, or if they get dismissed and then they’re refiled later. Now you have to post a completely different bail which costs a bunch more money, but as long as the prosecutors are playing within the rules, they are allowed to do certain things.

So, if you find yourself in a scenario where you feel that a case was dismissed and now it’s been brought back up again, then you’re going to need to sit down with a criminal defense attorney and give him all the information. Don’t leave any details out because the details that you leave out could be the very reason that the case was permitted to be refiled again and it’s still pending against you. Your attorney is going to end up finding that up. It’s just going to take them longer to figure it out if you don’t help him. You should be helping your attorney by giving him all the accurate information, even if you don’t like the accurate information – you don’t like it, you don’t think it’s fair, it doesn’t help you – but the attorney needs it in order to properly evaluate the case and do everything they can to help you.

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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.