What does it mean when a domestic violence charge is dismissed per statute?
If you were in Las Vegas Justice Court on a domestic violence charge and the District Attorney dismissed the case "pursuant to statute," you may be wondering what is going to happen next and what your rights are. You might have looked up the court minutes for your domestic violence case on the Las Vegas Justice Court Criminal Records database and saw this notation: DISMISSED PER NRS 174.085. What does this mean? Is the case over? Can you seal your record? This article answers those questions.
VOLUNTARY DISMISSAL OF DOMESTIC VIOLENCE CHARGES
In Justice Court, on domestic violence cases, the District Attorney often voluntarily dismisses charges "pursuant to statute," usually at the time of trial when they lack the evidence to proceed forward and prove their case. What does a voluntary dismissal pursuant to statute mean in a domestic violence case? First, we must discuss what it means for a criminal charge or a criminal case to be dismissed.
When a criminal case is dismissed, it is over. Usually the case is over for good, but read the next section about the prosecutor's ability to bring back criminal charges. Why can the prosecutor dismiss charges? The prosecutor has the right to bring criminal charges against a person, so they also have the power to dismiss those charges. In Nevada, the law that allows for the voluntary dismissal of criminal charges is NRS 174.085. If you hear "dismissed pursuant to statute" in court, this is the statute (law) that the court is referring to.
NRS 174.085 applies to all criminal charges, both felony and misdemeanor, and states that the prosecutor may "voluntarily dismiss a complaint" before preliminary hearing (in a felony case) or before trial (in a misdemeanor case). According to NRS 174.085, "[a]fter the dismissal, the court shall order the defendant released from custody or, if the defendant is released on bail, exonerate the obligors and release any bail." This means that if the defendant is in jail, he will be released, and if he's out on bond, the bond will be exonerated. This means that the bondsman will no longer have the power to arrest the defendant, or, if the defendant or a family member put up cash bail, that bail will be returned. But is the case really over?
IS THE CASE REALLY OVER?
When a prosecutor voluntarily dismisses charges, yes, the case is over—for the time being. But charges can be re-filed. Specifically, NRS 174.085 states that voluntarily dismissal of criminal charges prior to trial or preliminary hearing is "without prejudice to the right to file another complaint." What does it mean for a criminal case to be dismissed "without prejudice," and are there any restrictions on the prosecutor's ability to re-file criminal charges?
There are two types of ways a criminal case can be dismissed: with prejudice and without prejudice. "With prejudice" simply means that the charges can't be filed again. "Without prejudice" means that criminal charges can be re-filed. However, there are some important restrictions on the District Attorney's ability to re-file a criminal complaint.
First, according to NRS 174.085, voluntary dismissal of a criminal case is "without prejudice" (i.e., charges can be re-filed) UNLESS "the State of Nevada has previously filed a complaint against the defendant which was dismissed at the request of the prosecuting attorney." This means that the prosecutor can re-file dismissed charges once without prejudice, but the second time they dismiss, it is with prejudice. Charges can't be filed for a third time. Imagine this scenario. You are charged with domestic violence and are being held in jail. On the day of trial, the District Attorney does not have enough evidence to prove the case and is forced to dismiss pursuant to statute. Then the District Attorney files another criminal complaint based on the same allegations. First of all, pursuant to statute, the court will not issue an arrest warrant. A summons asking you to appear in court will be sent to your address. Another trial date will be set. If you show up for trial and the prosecutor again lacks the evidence to go forward and prove their case, and the prosecutor again dismisses the case "pursuant to statute," then this second dismissal is "with prejudice" and the case is over permanently. The prosecutor does not get a third chance.
Second, the prosecutor has a time limit for filing a second criminal complaint. This time limit is based on the "statute of limitations." A statute of limitations is a law that sets a time limit for filing charges. NRS 171.085 is the Nevada law that sets these time limits. In the context of a domestic violence case, there are two possible statutes of limitations. For a misdemeanor domestic violence case, the time limit is one year. For felony domestic violence, the time limit is 3 years. Keep in mind, the clock starts running from the date of the alleged incident (i.e., the date the defendant supposedly committed the crime), so by the time the complaint has been dismissed at trial, the clock is already running.
Third, although this is not a formal restriction on the District Attorney's right to re-file criminal charges, the District Attorney only has so much staff and so much time, so as a practical matter, most cases dismissed voluntarily pursuant to statute are not re-filed. This means that if your charges are voluntarily dismissed pursuant to statute, most likely, the case is over. If charges are re-filed, it's usually because the defendant was arrested again (frequently for the same charge). So it's important, after the dismissal of criminal charges, for defendants to avoid further contact with police until the statutory period runs (1 year for misdemeanors, 3 years for felonies).
CAN I SEAL MY RECORD?
If your domestic violence case was dismissed, you may be interested in sealing your record (some people use the term "expunging" the record) so that the domestic violence arrest does not show up in background checks. As stated above, because the charge can technically be re-filed, you generally have to wait for the statutory period to run before sealing your record, unless the charge was dismissed "with prejudice." If you were acquitted at trial (i.e., found not guilty by a judge or jury) then you can begin the record sealing process immediately.
A criminal defense attorney like me can help you seal your record so that the court documents can't be accessed absent a court order, and have Las Vegas Metropolitan Police Department delete the arrest from their database, once the District Attorney can no longer re-file criminal charges, whether that is because the statute of limitations has run, the case was dismissed with prejudice, or because you were acquitted at trial.
Call me to discuss your options further. Consultations are always free.