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It is not uncommon for a criminal case to end in dismissal without prejudice. But what exactly is dismissal without prejudice, when and why does a case end this way, and how does it impact one’s criminal record?  

The Law Offices of Kerry L. Armstrong, APLC, specializes in criminal defense. We are glad to provide this brief overview, addressing those questions and more.

Understanding Dismissal Without Prejudice

Criminal cases end in convictions, plea bargains, or dismissals. The general public is least familiar with dismissal without prejudice. Here is an explanation of what dismissal without prejudice means and the reasons cases end in this method.

Dismissal Without Prejudice Explained

Dismissal without prejudice is when a criminal case is dismissed against the accused. However, the prosecutor retains the option to pursue the charge any time before the statute of limitations expires. The dismissal is a type of pause on the case that often, but not always, remains a dismissal forever.  

Reasons for Dismissal Without Prejudice

When the prosecutor requests a voluntary dismissal without prejudice, they usually have a plan regarding when or how to pursue the case later. They often ask for a dismissal without prejudice when:

  • They intend to file a different or additional charges later, as they gather new information; 
  • They have missing evidence they need to access; or
  • They are considering permanently dismissing the case and have unanswered questions.

As the dismissal without prejudice leaves the door open for pursuing the case later, the defendant must have an attorney. An experienced criminal lawyer can negotiate with the prosecutor or present an argument to the judge to permanently dismiss the case (“dismissal with prejudice”) or lessen the charges. But if the prosecutor later pursues the case, that same attorney will already be familiar with the defendant and their case and be prepared to resume representation.

Standard Dismissal Without Prejudice Case

There is not a singular category of cases that end in voluntary dismissal without prejudice. However, the common theme is that a prosecutor is not ready or able to try the case right now but is not prepared to put it to bed. 

Here is an example: A prosecutor files charges of arson against a suspect. The best evidence the prosecutor has is a witness who says they saw the suspect at the scene of the fire. However, the day before trial, the prosecutor cannot locate the witness. The prosecutor may request a dismissal without prejudice, intending to resume the arson case against the suspect when they find the witness.

Voluntary dismissal without prejudice is a standard part of our criminal justice process. These dismissals can occur in both felony and misdemeanor cases.

Criminal Record and Dismissal Without Prejudice

California law allows a case file and arrest record to remain a public record following dismissal without prejudice. However, as there was no trial, there is no conviction on record if the final result was a voluntary dismissal without prejudice.

While a dismissal without prejudice is almost always preferable to a conviction, legal representation is needed to reach that result and offer protection if the charges are refiled. 

Contact the Law Offices of Kerry L. Armstrong, APLC 

The Law Offices of Kerry L. Armstrong, APLC, is a renowned legal defense firm in San Diego County, California. Our attorneys have a combined forty years of experience and have handled over 150 trials. They are strong advocates for anyone facing criminal charges in the San Diego County area. For a free consultation, contact us now.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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