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Mark I. Cohen, ESQ. NYC Criminal Attorney

Dismissal With Prejudice Vs. Dismissal Without Prejudice


Being charged with a crime can be a nightmare. A conviction can come with harsh consequences, such as jail time and hefty fines. After being charged with a crime, all criminal defendants hope for a dismissal. A criminal case can be dismissed before the trial, during the trial, or even after the trial. When a criminal case is dismissed, it means the case is over. When criminal charges are dismissed, a defendant’s criminal record will indicate that even though they were charged with a crime, they were not found guilty or convicted of the alleged offense. However, when a criminal case is dismissed, it does not necessarily mean it is over forever. Whether a dismissed criminal case is over forever is dependent on whether it is dismissed “with” or “without” prejudice.

Dismissal With Prejudice

When people see the term “prejudice,” they usually associate it with discrimination. However, in the context of a criminal case dismissal, the word “prejudice” has nothing to do with discrimination. Dismissing a case with prejudice does not mean a judge dismisses it because of racism or something like that. In the context of a criminal case dismissal, “prejudice” refers to the loss of some privileges or rights. When criminal charges are dismissed with prejudice, the state loses the right to re-file the charges in the future. When criminal charges are dismissed with prejudice, it means the charges are dismissed permanently.

However, it is important to note that while prosecutors cannot bring the same criminal charges again after a criminal case is dismissed with prejudice because people have a right against double jeopardy, they can bring different charges against the same person.

Dismissal Without Prejudice

On the other hand, when a criminal case is dismissed without prejudice, the state does not lose the right to re-file the case in the future. A criminal case that is dismissed without prejudice can be re-filed at any other time. However, when a criminal case is dismissed without prejudice, the state cannot re-file the case after the statute of limitations has expired. According to the law, in New York, most felony offenses have a five-year statute of limitations, while misdemeanor offenses have a two-year statute of limitations. Petty offenses in New York generally have a one-year statute of limitations period.

Factors Courts Consider When Deciding Whether a Criminal Case Will Be Dismissed With or Without Prejudice

There are several factors a criminal court might consider when deciding whether a case will be dismissed with or without prejudice. For instance, a court might consider how complex the investigation is. If a case involves serious criminal charges and the investigation is complex, the court is likely to dismiss the case without prejudice so the prosecution can have time to prepare.

The court may also consider how much time is left before the statute of limitations “clock” runs out. If the statute of limitations “clock” is about to run out, the court will likely dismiss the case with prejudice.

Contact an NYC Criminal Attorney

If you’re facing criminal charges and need the help of a qualified criminal defense attorney, contact our NYC criminal attorney, Mark I. Cohen, at 212-732-0002.


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