It depends on the charge. A dismissal "without prejudice" means the prosecution generally keeps the option to refile the same charge, unlike a dismissal "with prejudice," which ends the case for good. But California's Penal Code 1387 generally bars refiling a felony after two qualifying dismissals, and a misdemeanor charged alone after one, with narrow exceptions.

What does "without prejudice" mean for a dismissed charge?

A dismissal without prejudice leaves the door open for the prosecution to refile the same charge later, while a dismissal with prejudice closes that door for good.

A written dismissal order does not always use either phrase. Often the real answer comes from which statute the judge used and how many times the same charge has already been dismissed, not from a label on the order itself. Penal Code 1385 lets a judge dismiss an action "either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice," with the reasons "stated orally on the record." A dismissal at a preliminary hearing for lack of probable cause (Penal Code 871) or a later motion to set aside an information (Penal Code 995) can also end a case at this stage. Penal Code 1387 is the statute that decides, after a dismissal under any of these routes, whether the prosecution can still bring the same charge again.

When does a dismissal already bar the prosecution from refiling?

A felony, or a misdemeanor charged with a felony, generally needs two qualifying dismissals before refiling is barred, while a misdemeanor charged alone generally needs only one.

Penal Code 1387 says an order ending a case under the dismissal chapter, or under Penal Code 859b, 861, 871 or 995, "is a bar to any other prosecution for the same offense" once the count described above is reached, unless an exception applies. The statute separates three situations, summarized below.

Caption: when a dismissal under Penal Code 1387 becomes a bar to refiling the same charge.

Case type What generally triggers the bar
Felony charged alone The second qualifying dismissal under Penal Code 1381 to 1388 (such as a 1382 speedy trial or 1385 dismissal), 859b, 861, 871 or 995
Misdemeanor charged together with a felony The second qualifying dismissal under those same sections
Misdemeanor charged alone The first qualifying dismissal under those same sections

Counsel has to compare the same charged offense across the full record, not just count how many times a case has been labeled "dismissed," because a substituted indictment and certain preliminary-hearing dismissal grounds can change the analysis.

What exceptions let the prosecution refile anyway?

In a felony case, or a misdemeanor charged with one, a judge's finding of new evidence, witness intimidation or, narrowly, a witness's failure to appear can still allow refiling.

In a felony case, or a misdemeanor charged together with a felony, Penal Code 1387(a) lists the exceptions a judge or magistrate can find after the later dismissal: "substantial new evidence has been discovered by the prosecution that would not have been known through the exercise of due diligence" before the case ended; the dismissal was "the result of the direct intimidation of a material witness," shown by a preponderance of the evidence; in a case charging Penal Code 243(e), 273.5, 273.6 or 261 where the complaining witness is the defendant's spouse, the dismissal happened because that personally subpoenaed witness failed to appear; or the dismissal resulted from the complaining witness being found in contempt for refusing to testify about a sexual assault or domestic violence crime (Code of Civil Procedure 1219(b)). Both of the last two exceptions apply only once and only within six months of the original dismissal. Separately, Penal Code 1387(b) lets a misdemeanor domestic violence case, as Penal Code 13700 defines it, proceed again on the same failure to appear exception, with the same six month, one time limit. For a violent felony as Penal Code 667.5 defines it, Penal Code 1387.1 gives the prosecution one further chance to refile after two prior 1387 dismissals, but only when at least one of those dismissals was due solely to "excusable neglect," which the statute defines to include "error on the part of the court, prosecution, law enforcement agency, or witnesses," and only when the prosecution did not act in bad faith.

Does it matter which statute the judge used to dismiss the case?

Yes, but mainly for working out whether the dismissal counts toward Penal Code 1387's limit at all, not for a separate set of rules.

Penal Code 1387 treats a dismissal under the interest of justice statute, Penal Code 1385, the same way it treats a dismissal under Penal Code 859b, 861, 871 or 995 for counting purposes. What usually changes the analysis is the charge, whether it is a felony or a standalone misdemeanor, and how many qualifying dismissals have already happened. The section matters most under Penal Code 1387(c), which keeps a later dismissal from barring refiling when the earlier one was, for example, a 995 motion granted for ineffective assistance of counsel or a defense conflict of interest.

What should you do if your case was dismissed?

Get the exact written dismissal order and its stated ground before assuming the case is over for good, and ask a lawyer whether an exception could still allow refiling.

The firm's dismissals page covers the motions and strategies used to get a case dismissed in the first place. If the prosecution is trying to undo a preliminary hearing dismissal rather than filing a new case, the firm's answer on a Penal Code 871.5 motion to reinstate a complaint explains that separate process, which the superior court decides on the existing record rather than through a new filing.

Frequently asked questions

Is a dismissal the same as an acquittal?

No. An acquittal is a verdict of not guilty reached after a trial. A dismissal ends the case earlier, without that verdict, for reasons such as insufficient evidence at a preliminary hearing, a procedural problem, or a judge's decision that continuing would not serve justice. Penal Code 1387's refiling rules apply to dismissals, not to an acquittal.

Does a dismissal without prejudice show up on a background check?

It can. A dismissal without prejudice does not automatically correct every record that already shows the earlier arrest or filing. If a background report still lists the charge as a conviction rather than a dismissal, the firm's answer on correcting that kind of record covers how to dispute the entry.

How long does the prosecution have to refile after a dismissal?

Apart from the six-month window on its witness-related exceptions, Penal Code 1387 does not set a fixed refiling deadline. Other limits can still apply, such as the statute of limitations for the specific charge, and, for a case dismissed at a preliminary hearing, the separate 15 day period the prosecutor has to move under Penal Code 871.5 to reinstate the original case instead of filing a new one.

What if the dismissal happened at my preliminary hearing?

A dismissal under Penal Code 871, for lack of probable cause, or a later motion granted under Penal Code 995 both count toward Penal Code 1387's limit. After a magistrate's dismissal, the prosecution can, instead of refiling, ask the superior court within 15 days to reinstate the complaint under Penal Code 871.5.

What counts as "excusable neglect" for the extra refiling chance on a violent felony?

Penal Code 1387.1 does not define the term narrowly. Its own text gives error by the court, the prosecution, a law enforcement agency, or witnesses as examples. The extra chance applies only to a violent felony as Penal Code 667.5 defines it, only after two prior qualifying dismissals, and only when the prosecution did not act in bad faith.

Is there a separate refiling rule for a domestic violence case?

In a narrow set of cases, yes. Penal Code 1387(b) lets a misdemeanor domestic violence case, as Penal Code 13700 defines it, proceed again despite the usual bar when a personally subpoenaed complaining witness's failure to appear caused the dismissal. This exception applies only once, and only within six months of that dismissal.

Talk to a lawyer

The Law Offices of David S. Chesley offers a free consultation, is available 24/7, and offers payment plans. Se habla español. Call (800) 755-5174 or use the contact page to go over the exact order in your case and what it means for refiling.