A handful of reasons exist for a prosecutor to dismiss a case, depending on the facts at hand.

Criminal charges are dismissed for a variety of reasons. Except in very few situations, charges are dismissed as a result of the prosecution deciding not to proceed with a case. A dismissal is considered a most favorable outcome where there is no need for the fear, anxiety, and high stakes that come with an actual trial.

Of course, every case is different, and depending on the facts surrounding an arrest, it can be hard to predict whether a dismissal is even likely. However, where the prosecution decides to dismiss a case, the decision is usually made because there are issues that make it difficult (or even impossible) for the State to prove the elements of a charge beyond a reasonable doubt. Remember, it’s the State’s job to prove that you committed an illegal act. While your defense attorney can present evidence and call witnesses in court to show that you did no wrong, the burden falls on the State to put on a case against you. Where the prosecution is convinced that this can’t be done so easily, they are more likely to dismiss a case.

Here is the list of common reasons why a criminal case might be dismissed:

The Defendant was convicted (or deferred adjudication was granted) in another case or count.

• This is often the case where multiple charges arise from a single incident. This also occurs where there are multiple charges from separate, unrelated incidents. In a situation involving multiple charges, the prosecution may offer a plea agreement that involves deferred adjudication or straight probation for one charge, while choosing not to proceed with the other(s).

The Defendant is in custody in another jurisdiction.

• This commonly happens where someone is in jail, awaiting trial in another county or state for something more serious. This type of dismissal may also be given where the person is accused is currently in an Immigration and Customs Enforcement (ICE) detention facility, facing removal proceedings that may possibly affect how the State proceeds with a particular criminal case.

Old case, no arrest.

• Depending on the facts of the case and the sufficiency of any evidence gathered, the prosecution may dismiss a case that has lingered for years, with a suspect (defendant) who was never actually arrested. If the offense is fairly minor, and there are no other concerns about public safety or the suspect (defendant) posing a danger, a prosecutor may choose to dismiss this type of case where newer, more serious ones require more attention.

The Defendant was granted immunity.

• In exchange for the defendant’s testimony at trial or a hearing, the prosecution may offer to dismiss a pending criminal charge. This often happens where a defendant testifies in another criminal case, sometimes against a person who is similarly charged in respect to the same incident. This type of agreement is likely offered where the defendant is an essential witness and has information and testimony to offer that no one else can provide. In this situation, the State is willing to make compromises in order to prove certain cases.

Motion to suppress granted.

• Generally, motions to suppress are filed by a defense attorney if an argument can be made that evidence was unlawfully obtained. Motions to suppress are common in DWI cases, where there may have been no reasonable suspicion for a traffic stop that was the basis for the police to question a defendant and subject them to standard field sobriety tests. The judge reviews arguments made by both the defense and State, and decides whether to grant or deny the motion to suppress. If the motion to suppress is granted, the evidence at issue cannot be used by the State to prove that the defendant committed a certain offense. Where the State is left with very little to no other evidence, the prosecution then files a motion to dismiss the case. 

Insufficient evidence.

• There are many examples where evidence in a case is insufficient. As a reason for dismissal, “insufficient evidence” often refers to issues where a complaining witness is shown to not be so trustworthy. Also, there are instances where police officers choose to make an arrest, even though there is little to nothing that shows that all required elements of a crime are present. Where an arrest was made without probable cause, the prosecution may choose to dismiss a case on the basis of “insufficient evidence.”

Co-Defendant convicted, insufficient evidence as to this Defendant.

• Where the State meets its burden in showing that there is sufficient evidence to convict one person involved in a specific incident, there is the problem of also proving that another involved person committed an offense. That could be the same crime the convicted person was originally charged with, or it could be a different offense altogether. If evidence in a separate criminal proceeding overwhelmingly points to a co-defendant’s wrongdoing, that evidence can aid to show that another person likely did not commit certain acts, and that their own separate case should be dismissed.

A necessary and material witness is missing.

• This is a situation that usually happens the day of trial. For some reason or another, a witness who may have initially cooperated with the State might not show up to testify. This could be due to a true emergency, or the witness may choose to not participate to protect their own interests. Cases involving domestic violence (namely, Assault Bodily Injury) sometimes encounter this issue, and the State may dismiss either before or after a jury is selected and empaneled.

Case re-indicted/re-filed.

• A widespread misconception is that dismissed charges cannot be raised against you ever again. This is far from the truth, especially if there is a statute of limitations attached to your charge that has not expired. Generally, for misdemeanors, the statute of limitations is two years. For most felonies, the statute of limitations is three years. That means the State has a certain period of time to file charges from the date someone allegedly committed the offense(s). There is no limit as to how many times the State can file charges, as long as those charges are filed within the statute of limitations. If a prosecutor feels there is an issue with a case that can be corrected before the statute of limitations runs out, it is possible to dismiss the case and re-file it later. This is likely to happen if there is an issue with the charging document. Know that it is also possible to dismiss a case and re-file it under a different section of the Texas Penal Code if new evidence points to a different offense.

The law enforcement agency failed to submit necessary evidence.

• Everyone makes mistakes. Law enforcement makes mistakes. Some mistakes are more damaging to a case than others. Sometimes, these mistakes work to your favor. I’ve seen law enforcement officers fail to submit necessary evidence in multiple instances. It’s more likely to happen where law enforcement looks at video surveillance footage at an establishment where a crime allegedly occurred, but doesn’t take steps to take that footage themselves and log it into the case file. It also happens where law enforcement notes that someone showed them texts and videos on a phone, but no further steps were taken to collect screenshots of those texts and video files to be accessed later, by both investigators and prosecutors. Where allegations rest on a police officer’s narrative, and enough time passes where the police officer may not clearly remember the contents of the materials shown to them, a case might be dismissed as the actual, necessary evidence was not properly collected and preserved. Where that evidence can’t be referred to, it becomes much more difficult for the State to prove a case.

Complainant requested case be dismissed.

• You may have heard of what’s called an Affidavit of Non-Prosecution (ANP). This is a document where a complaining witness (also called an alleged victim) expresses that they do not want the State to move forward with prosecuting a case. An ANP may be filed because the complaining witness has forgiven the defendant, or wants to clarify misunderstandings with law enforcement at the time the defendant was arrested. This happens frequently in domestic violence cases and situations where a language barrier hampers communication between police officers, witnesses, and suspects. If the prosecution thinks that the statement within the Affidavit of Non-Prosecution is persuasive enough, they may dismiss a case with consideration given to the complaining witness’s desires.

The Defendant died.

• Quite simply, if you are dead, you cannot stand trial. Nor can you attend your court hearings. In this situation, upon receiving confirmation and documentation that the defendant has passed away, the prosecution quickly dismisses a case.

Defendant completed a pretrial diversion program.

• Sometimes, instead of deferred adjudication probation, a defendant may complete a pretrial diversion program (PTD) as a means of dismissing a case. While this program comes with strict terms and conditions, it provides a greater benefit than deferred adjudication probation in that not only does completing the pretrial diversion program result in the case’s dismissal, but the option remains to have all record of the case expunged, or destroyed. Where the Defendant applies and is accepted into PTD upon the prosecution’s recommendation, successful completion will result in getting the case dismissed.

Rejected multi-count charging document filed.

• Where multiple counts, or instances, of a criminal offense are listed in the charging document, or multiple offenses are charged in connection to a single incident, one or more charges may be dismissed or rejected (often, by reason of insufficient evidence). The prosecution has the authority to move forward with some counts or charges while not proceeding with others.

Further investigation.

• This is often similar to “insufficient evidence.” A prosecutor may give a case more thorough review before ever speaking to a defense attorney. It may be decided that there was never enough evidence for law enforcement to send the file to the prosecution in the first place, or that the written offense report is completely unsupported by body-worn camera footage, and vice versa. “Further investigation” is also a listed reason to dismiss where the prosecution interviews key witnesses, only to spot issues with their credibility or the information they may or may not be able to provide to help the State prove its case.

Restitution paid in full.

• Sometimes, particularly in theft cases, a prosecutor may agree to dismiss a case if the dollar value of stolen property is paid by the defendant to the person harmed. Where a case involves damage to property, the dollar value of that damage paid in full by the defendant to the victim may persuade a prosecutor to dismiss a case. This is more likely where the defendant has no other criminal history. Where all restitution is paid through the District Attorney’s Office, those are properly transmitted to the victim and documented as support for the prosecution’s decision to dismiss the case.

Created in error.

• It is possible for certain cases to be created in error, sometimes in relation to a previous case that was already resolved. Indeed, administrative errors and improper filing can greatly interfere with your life and freedom. Where attention is brought to a case that may have been dismissed in the past, only to be reopened through a clerical or administrative error, the prosecution should immediately dismiss the active case and take steps to ensure this doesn’t happen again to your closed file. Unfortunately, unless all record of a case is destroyed in compliance with an expunction order, this is an infrequent, yet worrisome possibility that exists even if a case was dismissed months or years before. I have seen it happen once.

Other (see explanation below).

• This reason is listed for dismissal if none of the other reasons (listed abve) apply to a case. For example, if the defendant completed several classes of their own accord, and the prosecutor is convinced that they have taken personal responsibility for their actions, those classes may serve as the basis for dismissing a case. The classes may be listed in an explanation for the dismissal provided by the prosecutor. Or, it is possible that the case could be dismissed for any of the reasons already listed, but the reason for the case’s dismissal was simply entered into the court records database as “DSMD – OTHER.”

Remember that in Texas, whether a case is dismissed generally depends on how the prosecutor views the case and the evidence supporting the charge(s). While the judge signs a motion to dismiss, it is ultimately filed by the prosecutor, with no signature line for your attorney. While a criminal defense attorney’s goal should be to persuade the prosecution to dismiss a case, sometimes this is not possible. If an outright dismissal is not a realistic possibility, a criminal defense attorney should negotiate with the prosecutor to reach a reasonable plea agreement. However, you are not required to enter a plea agreement. You have the right to a jury trial (in some cases, if the prosecution agrees, you may have a trial in front of a judge). Taking a case to trial is a serious decision, and comes with great risks. It is a criminal defense attorney’s job to inform you of those risks. Even where you think that your case is baseless, the prosecution may think otherwise. Where a prosecutor refuses to dismiss your case, taking it to trial may be a risk well worth taking, depending on your situation.