Getting criminal charges dropped before trial is one of the best outcomes you can achieve. There are numerous grounds for getting charges dropped, though persuading the prosecutor to drop the charge is rarely easy. If you are successful, you will not have to go to trial. However, dropped charges can be refiled later if new evidence emerges.
What happens when criminal charges are dropped
If you get prosecutors to drop the criminal charges that have been filed against you, then your case would end. If you were in custody or confinement, you would be released. There would be no more court dates and no trial. You could go back to your normal life.
The criminal defense attorneys at our law firm aim to do this whenever possible. Ending the criminal case as soon as possible in the legal process and without the imposition of any penalties is always a goal. In some cases, the prosecutor’s office can be persuaded to drop the charges during the arraignment or even not to press charges at all.
However, law enforcement’s investigation may still continue. If new evidence is uncovered, the charges may be refiled by the district attorney. If they are, a new trial date can be set and your case would be resurrected.
8 possible grounds for dropping charges
You can try to get charges dropped for a variety of reasons. However, the decision to drop them is ultimately up to the prosecutor. 8 grounds for getting criminal charges dropped are:
- insufficient evidence of guilt,
- new evidence undermines the prosecution’s case,
- illegal search or seizure,
- violation of other constitutional rights,
- your high likelihood of prevailing at trial with a legal defense,
- the victim or the prosecutor’s witnesses are not cooperative or lack credibility,
- your acceptance into a diversion program, and
- a plea deal.
“Which of these grounds for dropping a case will most likely work in your case will depend on the particular circumstances at play. It is not uncommon for defense attorneys to pursue more than one option.” – criminal defense lawyer Neil Shouse
1. Not enough evidence
Prosecutors will have to prove each element of the offense beyond a reasonable doubt. This is a high standard to meet. By pointing out flaws and other weaknesses in their case early on, you can convince them to drop the charges.
2. New exculpatory evidence
Sometimes, evidence that clears your name is overlooked or does not come forward quickly. Some examples of this happening are:
- DNA evidence shows that you did not commit the crime you have been charged with,
- a witness is found who can back up your alibi defense or your claim that you were not at the scene of the crime, or
- the victim changes their story.
In many cases, this is the result of an investigation by a criminal defense attorney. Law enforcement agencies tend to focus on incriminating evidence, and often overlook or ignore evidence that you are innocent.
3. Illegal search or seizure
The Fourth Amendment to the U.S. Constitution, as well as all state constitutions, forbids unreasonable searches or seizures by law enforcement. Suppose a police officer conducts an unreasonable search or seizure, such as a warrantless search not based on probable cause or any other warrant exception. In that case, the evidence they find can be excluded from trial, and prosecutors cannot use it to convict you.
If the evidence in your case was clearly the result of an illegal search or seizure and it is fundamental to the prosecutor’s case, the prosecutor may agree to drop the charges. However, our lawyers have found it more common for this issue to be contested. It would be argued in court and, if the judge decides that it was a violation of your rights, then he or she would dismiss the case.
4. Some other constitutional violation
Criminal suspects and defendants have other constitutional rights, including:
- the Fifth Amendment’s right from self-incrimination, also known as your right to remain silent,
- the Sixth Amendment’s right to a speedy trial,
- the Sixth Amendment’s right to a lawyer, and
- your Miranda rights, or your right to be told of your constitutional rights when taken into police custody.
If police violate any of these rights, that violation can be used to urge prosecutors to drop the case.
5. You have a very strong legal defense
Depending on the facts of the case, you may have a very strong legal defense to the charges. Some of these are:
- you were acting in self-defense,
- you have an alibi, or
- the victim is making false accusations.
If it is evident that one of these defenses would raise reasonable doubts about your guilt, it can persuade the prosecutor to drop the case.
6. Problematic victims or witnesses
Many criminal cases rely heavily on the testimony of the victim and any witnesses who saw what happened. If their story keeps changing or the victim is no longer cooperating with the prosecutor, you may be able to get the charges dropped.
Our lawyers have found that this is particularly common in domestic violence cases. In some cases, the alleged victim could face charges for filing a false police report. In these cases, you may want to file for a protective order, also known as a no-contact order or a restraining order, so it does not happen again.
7. Diversion program
Some criminal defendants, typically first-time offenders in non-violent crimes, may be eligible for a diversion program. Depending on the state and jurisdiction, these programs can be for crimes involving:
- drug possession or abuse,
- alcohol abuse,
- mental health issues, and/or
- domestic violence.
If you choose to participate in diversion, you would generally plead guilty but the judge would suspend the sentence. If you complete the diversion program then the prosecutor would drop the charges and you would not serve the sentence.
8. Plea deal
A common way to get charges dropped is through a plea bargain. Charge bargaining is a type of plea deal where you agree to plead guilty to a lesser charge in exchange for having the original charge dropped.
Of course, the guilty plea would lead to a conviction for the lesser criminal offense. You would then have a criminal record. However, this may still be in your interests, especially if it would let you plead guilty to a misdemeanor rather than face a felony charge.
Dropped charges versus case dismissal
The prosecutor can drop charges. Only the judge can dismiss them. Both end with the criminal prosecution going away during the pretrial phase of the criminal justice system.
Cases that the court has dismissed can be dismissed either:
- with prejudice, or
- without prejudice.
Cases dismissed without prejudice can be refiled. Those dismissed with prejudice cannot be refiled if they are based on the same claims and sets of fact.
Dropped charges can be refiled
Charges that have been dropped by the prosecution can be refiled or reinstated. This generally happens if the police department has found new incriminating evidence. If this happens, your case will start all over again.
This possibility does not typically infringe your constitutional rights under the double jeopardy clause. Because the charge had been dropped the first time, there was no finding about your guilt or innocence.
