The Difference Between Dismissed Without Prejudice and Dismissed with Prejudice in CA

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In a criminal law context, “dismissed without prejudice” means that the prosecutor can refile your case at a later date. By contrast, in the case of a “dismissal with prejudice,” the case is over and you walk free.

Certain rules determine whether a case is dismissed with or without prejudice. Below, the California criminal defense lawyers at The Law Offices of Kerry L. Armstrong, APLC will go over those rules and what makes dismissed with or without prejudice different.

If you have any questions, please contact us online or call 619-393-5797 today.

What Does “Dismissed Without Prejudice” Mean?

A California criminal case can be dismissed without prejudice, meaning that it can be filed again later. Some of the most common reasons for dismissing a case without prejudice include:

  • Lack of jurisdiction: The court does not have the power to decide your case. The crime might have occurred outside of the court’s jurisdiction, for example.
  • Inappropriate venue: For various reasons, it would be better for another court to try the case.
  • Improper service of process: The court did not properly notify the defendant of the proceedings against them.

In a criminal law dismissal without prejudice, it is typically (but not always) the defendant’s lawyer who initiates the dismissal process by filing a motion to dismiss. When either side files a motion to dismiss, the other side has the opportunity to respond. 

When the defendant’s motion triggers a dismissal, the dismissal is involuntary. When the prosecution’s motion triggers a dismissal, the dismissal is voluntary. Judges normally do not dismiss cases on their own initiative.

What Does “Dismissal with Prejudice” Mean?

Dismissal with prejudice is a legal act that usually terminates a civil or criminal case. If the judge dismisses your criminal case with prejudice, the charges are dropped and you go free.

In almost every situation, no court can try you again for the same course of conduct, because that would violate the Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution.

Double Jeopardy and Dismissal With Prejudice

“Double jeopardy” is forbidden by the U.S. Constitution, which states, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .” This clause means (subject to narrow exceptions) that you cannot be tried twice for the same criminal charge.

The double jeopardy clause determines whether certain actions will cause a case to be dismissed with or without prejudice. A dismissal of a criminal case must be with prejudice if:

  • The court has already empaneled a jury;
  • The trial is a bench trial and the court has already sworn in the first witness;
  • The court acquits the defendant;
  • A court acquits the defendant of a lesser included offense (a court cannot try a defendant for first-degree murder after that court or another court acquits the defendant of second-degree murder for the same killing, for example); or
  • A court overturns the defendant’s conviction for a lesser included offense.

If one court convicts the defendant of a crime and a higher court overturns the conviction, a court can retry the defendant. Thus, an acquittal is final but the reversal of a conviction is not necessarily final.

We are Not Afraid to Fight for Your Freedom

The San Diego County criminal justice system is a jungle. Its guiding principles are competition and conflict, and you will be at a severe disadvantage unless you retain an experienced criminal defense lawyer to represent you.

Contact the Law Offices of Kerry L. Armstrong, APLC, by calling 619-393-5797 or by contacting us online to schedule a free, confidential consultation.

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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.