Dismissals – With or Without Prejudice

When a criminal charge is dismissed, an important question that should be asked is; is it with or without prejudice? The reason being is that a dismissal does not always end a prosecution for good. It depends upon the nature of the charge and the nature of the dismissal as well.

For simple and serious misdemeanors such as possession of controlled substances, operating while intoxicated, first offense, and other similar charges, once a charge is dismissed it is done. The defendant is forever discharged and can never be re-prosecuted for that specific charge. The same is not true for aggravated misdemeanors such as operating while intoxicated second offenses, possession of controlled substance, second offenses. In those cases, the nature of the dismissal determines whether or not the charge can be refiled by the prosecutor even after it has been dismissed.

A dismissal with prejudice means that a charge cannot and will not be refiled. This is obviously the best type of dismissal a criminal defendant could hope for. A dismissal without prejudice, however means that the charge can be refiled if the proper procedures are followed, so long as the charge is filed within the applicable statute of limitations. This is far and away the most common form of dismissal.

Just because a dismissal order says "without prejudice", does not mean that the case can be refiled. There are certain procedures that a prosecutor and judge must follow in order to be able to re-file a charge even if the dismissal order states that the charge is dismissed "without prejudice." In a recent Court of Appeals case of State v. Preston, argued by GRL Law attorney, Scott Michels, the Court of Appeals explained that a dismissal without prejudice must specifically state the reason why the dismissal is being requested and why a dismissal "without prejudice" would be in the "furtherance of justice." If the motion to dismiss filed by the prosecutor provides a legally sufficient basis for a dismissal, the trial court must still make a record and a specific finding that the dismissal without prejudice at that point in time is "in the furtherance of justice." If these procedures are not followed then any case that is dismissed is actually dismissed with prejudice and cannot be refiled. This is precisely what the court ruled in State v. Preston and concluded that the operating while intoxicated, second offense, charge should have been dismissed with prejudice.

Dismissals without prejudice are also not allowed to be made by prosecutors in order to gain a tactical advantage or to get around a defendant's exercise of its right to speedy trial. If a defendant can make a showing of an improper basis for a dismissal, the judge can order it dismissed with prejudice even if the prosecutor is asking to be allowed to refile the charge.