Getting a Criminal Charge Dropped or Dismissed

Just because you're arrested, doesn't mean you will be charged or convicted of a crime. Prosecutors can reject (or "drop") a case and choose not to file formal charges and prosecutors and judges can dismiss charges after they are filed. Some defendants may be able to earn a dismissal by completing a diversion or deferred entry of judgment program.

Here's an overview of some of the most common ways felony and misdemeanor cases get dropped or dismissed.

Can Criminal Charges Be Dropped Before Court?

Law enforcement agencies are responsible for making arrests. But prosecuting attorneys decide what, if any, charges to file. During an initial case review, prosecutors look at police reports and whatever other information is available and decide:

• whether there is enough evidence to support a conviction, and
• whether filing charges would serve the "interests of justice."

Prosecutors may decide to file some or all of the charges a suspect was arrested for, file more or less serious charges, or reject ("drop") the case and file no charges at all. For example, let's say a suspect named Graham was arrested for robbery. But an eyewitness identifies someone other than Graham as the robber. Without evidence to support a conviction against Graham, the prosecutor drops the case.

How Often Are Cases Dropped?

In 2022, researchers from Florida International University and Loyola University Chicago published a study on Prosecutorial Performance Indicators (PPIs). The study compiled data on the case screening and dismissal decisions of 15 prosecutor's offices across the country from 2017 to 2021. The study showed that prosecutors rejected an average of 28% of cases at screening, though percentages varied widely from jurisdiction to jurisdiction.

How Will I Know If My Case Has Been Dropped?

If your case has been rejected, you might get a letter from the prosecutor's office letting you know that no charges have been filed or you might find out your case has been dropped at your first court date. But a dropped case doesn't necessarily stay dropped forever. Prosecutors have a window of time set by your state's statute of limitations to bring charges. The amount of time varies by crime. Less serious crimes have shorter time limits, while prosecutors have more time to file serious crimes.

Dropped Charges vs. Dismissed Charges

A prosecutor can drop (decide not to pursue) a criminal case before or after charges are formally filed. When a prosecutor drops a case after filing charges it's called a "dismissal." Judges can also dismiss charges under some circumstances but prosecutors make most dismissal decisions.

How Often Are Cases Dismissed?

According to the study on PPIs, prosecutors dismissed an average of 28% of filed cases in the 15 jurisdictions studied from 2017 to 2021 though, again, rates varied widely from jurisdiction to jurisdiction.

How Will I Know If My Charges Have Been Dismissed?

Criminal charges are dismissed in court. In most cases, the prosecutor makes a motion to dismiss based on a "lack of sufficient evidence" or "in the interests of justice" and the judge grants the motion and dismisses the charges.

If the charges are "dismissed with prejudice" the case is dismissed permanently. If the charges are "dismissed without prejudice" the prosecutor may be able to refile the charges, at least until the statute of limitations runs out. Rules on this vary depending on the seriousness of the charges and the jurisdiction. If you have questions about whether a dismissal is really the end of your case, talk to a lawyer or ask the judge if it's legally possible for the charges to be refiled.

Why Do Some Criminal Cases Get Dropped or Dismissed?

Cases are dropped or dismissed for different reasons at different stages of criminal proceedings. Here are some of the reasons why.

Illegal Search or Seizure

The Fourth Amendment to the U.S. Constitution limits the power of the police to make arrests, search people and their property, and seize evidence. If the police unlawfully arrest or search you, you can file a motion to suppress evidence. If your motion is granted, the prosecutor can't use any evidence seized as a result of the unlawful arrest or search and your case will likely be dismissed with prejudice. In most states, only defendants who have pleaded not guilty to felony charges are entitled to preliminary hearings.

Insufficient Evidence

Another opportunity for defendants to get charges dismissed is at a preliminary hearing (prelim). At a prelim, prosecutors must present enough evidence to convince the judge that there is probable cause (objective evidence) to believe that a crime has occurred and the defendant is the person who committed it. If a judge finds that there isn't probable cause to believe the defendant is guilty, the judge will dismiss the case. In most states, prelims are only required in felony cases.

Unavailable Witness or Unreliable Witness

If a key witness is unavailable to testify or the prosecutor decides a witness is unreliable, the prosecutor may have no choice but to dismiss the charges for lack of sufficient evidence.

Plea Negotiations

Most criminal cases end with a plea bargain. A plea bargain involves a defendant agreeing to plead guilty or no contest in exchange for some type of immunity or leniency, including the dismissal of other charges or cases.

Speedy Trial Violation

Defendants have a right to have a trial within a certain amount of time. Time limits vary based on the jurisdiction and type of charge. If your trial is delayed beyond the statutory time limit, you can file a speedy trial motion and try to get your case dismissed.

Statute of Limitations

As noted above, prosecutors have only so long to file criminal charges. Time limits are set by laws called statutes of limitation. Most misdemeanor charges must be filed within a year or two. Prosecutors typically have much longer to file felony charges. If a prosecutor files charges after the statute of limitations has expired, you can file a motion to dismiss the charges.

Earning a Dismissal: Pretrial Diversion

Most states have diversion programs for first-time offenders who are charged with minor crimes like shoplifting. Programs vary from state to state but typically involve diverting defendants away from criminal court and into some type of counseling. Defendants who complete counseling and stay out of trouble can get their cases dismissed. Defendants who don't complete the diversion program return to court for trial.

Can Charges Be Dismissed After a Conviction?

Occasionally, a conviction isn't the end of a criminal case. A convicted defendant can pursue post-conviction remedies like appeals and writs of habeas corpus and may end up getting a case dismissed after conviction.

Another potential pathway to a dismissal is through a deferred adjudication program. These programs are similar to pretrial diversion but defendants have to plead guilty to participate. After the guilty plea is entered, sentencing is put off to allow the defendant a chance to complete drug treatment or counseling. Defendants who complete treatment get to withdraw their plea and have their case dismissed. Defendants who don't complete the program are sentenced based on their guilty plea.

Talk to an Attorney

If you've been arrested or charged with a crime, talk to a criminal defense attorney as soon as possible. An attorney can answer your questions, try to get your case dropped or dismissed, and protect your rights.