How to Get Criminal Charges Dismissed in California

Q: Can charges be dropped before the first court date in California?

Yes, if the prosecutor declines to file. Every arrest is reviewed by a filing deputy who decides whether the admissible evidence proves each element, and a lawyer can present exculpatory evidence to that deputy before the decision. Misdemeanors generally must be filed within one year under Penal Code section 802 and most felonies within three years under Penal Code section 801, so a case that has not been filed may still be filed later. Talking to the detective yourself rarely helps and often hurts.

Q: Can the victim drop the charges?

No, only the prosecutor can. In California the case belongs to the People, and a complaining witness who no longer wants to proceed does not control it. A witness's absence limits what the prosecutor can prove under Crawford v. Washington, and that limit often leads to a dismissal or a reduced charge. Contacting the witness to ask them to drop the case is a separate crime and must never be done.

Q: What is a Penal Code 1385 dismissal?

A dismissal in the furtherance of justice. Penal Code section 1385 allows the judge, on the prosecutor's motion or the court's own motion, to dismiss a case or an allegation with the reasons stated on the record. Prosecutors use it when a case has become unprovable or unfair to pursue, and judges use it to strike enhancements and prior strikes under People v. Superior Court (Romero). A defendant cannot force a 1385 dismissal by motion alone, but a defense presentation is usually what prompts one.

Q: How does a suppression motion get a case dismissed?

By removing the evidence the prosecutor needs. A motion under Penal Code section 1538.5 asks the judge to exclude evidence obtained through an unlawful stop, search, or seizure. When the excluded evidence is the drugs, the weapon, or the breath result, the prosecutor cannot prove the charge and dismisses. The prosecutor bears the burden of justifying a warrantless search, and officers must testify and face cross-examination at the hearing.

Q: Does completing diversion count as a dismissal?

Yes. Under Penal Code section 1001.95, Penal Code section 1001.36, Penal Code section 1000, and Penal Code section 1001.80, successful completion of the program results in dismissal of the charges, and the arrest is generally treated as if it had not occurred for most purposes. DUI charges cannot be diverted because of Vehicle Code section 23640. Immigration consequences of diversion depend on whether a plea was entered, so a noncitizen should get advice under Penal Code section 1016.3 first.

Q: Is a dismissed case still on my record?

The arrest usually remains until it is sealed. A dismissal ends the prosecution but the arrest record stays in the state database. Penal Code section 851.91 lets you petition to seal an arrest that did not end in a conviction, and Penal Code section 851.8 provides a finding of factual innocence in the strongest cases. Government Code section 12952 restricts most employers from considering an arrest that did not lead to a conviction.

Daniel Gramling, Esq.

7 minutes ago

12 min read

The short answer: criminal charges in California are dismissed when the prosecutor decides not to file or not to proceed, when a judge grants a motion that removes the evidence or finds the evidence insufficient, when the case is not brought to hearing or trial within the statutory time limits, or when the defendant completes a diversion program or civil compromise that ends in dismissal by law. There is no motion called "dismiss my case because I am innocent." Each path has its own statute, timing, and burden, and the job of a defense lawyer is to identify which paths fit the facts and to build the record that makes the prosecutor or the judge take them. This guide walks through the ten ways cases actually get dismissed in Riverside, San Bernardino, Los Angeles, and Orange County courts and what each one requires.

Dismissal Before Charges Are Filed: The Prosecutor Declines

An arrest is not a filing. After an arrest, the police send a report to the District Attorney, or in the City of Los Angeles and a few other cities, the City Attorney or City Prosecutor for misdemeanors, and a filing deputy decides whether to charge. The deputy is asking whether the admissible evidence proves every element beyond a reasonable doubt to a jury, as we explain in What Prosecutors Look At Before Filing Criminal Charges in California. A significant share of arrests, particularly in domestic disputes, low-level drug cases, and shoplifting, end with a rejection or a request for further investigation and never become a court case.

Pre-filing advocacy. A defense lawyer retained in the days after an arrest can contact the filing deputy, provide exculpatory evidence such as video, receipts, or witness statements, and point out legal defects before the decision is made. This is the least expensive dismissal there is, because there is nothing to dismiss. It also has a deadline: misdemeanors generally must be charged within one year under Penal Code section 802 and most felonies within three years under Penal Code section 801, and a prosecutor who is still reviewing a file can file at any time inside that window. See Arrested Last Night in the Inland Empire? What to Do Now for the first steps.

What not to do. Calling the detective to explain yourself almost never produces a rejection and often produces the admission that makes the case. We explain why in Can I Talk My Way Out of Criminal Charges in California? and Understanding Your Rights When Questioned by Police in California.

Dismissal by the Prosecutor After Filing

The prosecutor's own motion. Once a case is filed, the prosecutor can move to dismiss under Penal Code section 1385 in the furtherance of justice, and the court can grant it with the reasons stated on the record. Prosecutors dismiss when a key witness becomes unavailable, when discovery reveals a problem with the stop or the search, when a lab result comes back inconsistent with the charge, or when new evidence undercuts the complaining witness. A prosecutor will also sometimes dismiss one case in exchange for a plea in another, or dismiss counts as part of a plea, which is a partial dismissal rather than a clean one.

How the defense gets there. The path to a prosecutor's dismissal is a written presentation, sometimes called a mitigation or dismissal package, that shows the deputy what the jury would see: the body-worn camera segment that contradicts the report, the surveillance video the police did not collect, the medical record, the text thread that shows the accusation followed a custody filing. It works best before the preliminary hearing or the first trial setting, when the deputy has not yet invested in the case. We describe what these presentations contain in What Makes a Criminal Case Weak in California? and How Prosecutors Build Criminal Cases in California.

Reluctant witnesses. A complaining witness who does not want to proceed does not control the case, but the confrontation clause limits what the prosecutor can prove without that witness. Under Crawford v. Washington testimonial statements to police are inadmissible unless the witness testifies, while Davis v. Washington allows statements made during an ongoing emergency such as a 911 call. When the admissible evidence is a 911 call and nothing more, many prosecutors dismiss or offer a plea to a non-violent, non-domestic offense. Never contact the witness yourself; that is a separate crime and destroys the argument.

Dismissal Through a Suppression Motion

Penal Code section 1538.5. If the police stopped, searched, or seized without reasonable suspicion, probable cause, a warrant, or a recognized exception, the evidence is suppressed, and in drug, weapon, and DUI cases the suppression usually leaves the prosecutor with nothing to prove. The motion is heard by the judge, the prosecutor bears the burden of justifying a warrantless search, and officers testify and are cross-examined. In felony cases the motion can be combined with the preliminary hearing, and in misdemeanor cases it is set as its own hearing. Our guide What Is a 1538.5 Motion and When Can You File One? explains the procedure, and Can Police Search Your Car in California? covers the most common vehicle scenarios.

The most common winning issues. Traffic stops without a real vehicle code violation, stops prolonged beyond their purpose in violation of Rodriguez v. United States, searches of phones without a warrant contrary to Riley v. California, vehicle searches that exceed Arizona v. Gant, and home entries without consent or exigency are the recurring themes. Body-worn camera footage has made these motions far more winnable because the timeline can be measured to the second.

Statements. A statement taken during custodial interrogation without the warnings required by Miranda v. Arizona is excluded from the prosecutor's case in chief. When the confession is the case, its exclusion leads to dismissal or a much better offer. Involuntary statements obtained through threats or promises are excluded for all purposes.

Dismissal at or After the Preliminary Hearing

Discharge under Penal Code section 871. In a felony case the magistrate at the preliminary hearing must find probable cause on each count. If the evidence does not establish probable cause that a felony was committed and the defendant committed it, the magistrate dismisses the complaint under Penal Code section 871, and the prosecutor's options are to refile once or to seek review. The standard is low, but cases are discharged when the witness testifies inconsistently with the report, when the evidence shows a misdemeanor rather than a felony, or when the prosecutor cannot get the key evidence in. See What Actually Happens at a Preliminary Hearing in California?.

Penal Code section 995 motions. After the defendant is held to answer, the defense can move under Penal Code section 995 to set aside the information on the ground that the defendant was committed without reasonable or probable cause, or that the preliminary hearing was conducted illegally. The trial judge reviews the preliminary hearing transcript and dismisses any count the evidence does not support. This is the standard second look at a felony case and is one of the most effective dismissal tools in felony practice.

Reduction rather than dismissal. At the preliminary hearing the magistrate can also reduce a wobbler to a misdemeanor under Penal Code section 17, subdivision (b), which is not a dismissal but often leads to diversion, a lighter plea, or a better negotiating position. We explain that in How to Reduce a Felony to a Misdemeanor in California.

Dismissal for Speedy Trial and Delay

Penal Code section 1382. A misdemeanor defendant who does not waive time must be brought to trial within 30 days of arraignment if in custody or 45 days if out of custody, and a felony defendant within 60 days of arraignment on the information, under Penal Code section 1382. If the prosecutor is not ready and cannot show good cause under Penal Code section 1050, the case must be dismissed. Prosecutors in busy courthouses such as the Riverside Hall of Justice, the San Bernardino Justice Center, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles are routinely stretched, and a defendant who holds the prosecution to its time can force a dismissal or a favorable offer. The decision not to waive time is strategic and should be made with counsel, as we discuss in What Happens at a Pretrial Conference in California Criminal Court?.

Preliminary hearing deadlines. In a felony case Penal Code section 859b requires the preliminary hearing within 10 court days of arraignment for a defendant who does not waive time, with dismissal as the remedy if it is not held within 60 days absent a waiver or good cause. A dismissal under this section can usually be refiled once, but the second filing starts the clock again and often produces a better result.

Delay between the complaint and the arrest. When a complaint is filed but the defendant is not arrested or notified for a long time, the California Supreme Court held in Serna v. Superior Court that the state speedy trial right attaches when a misdemeanor complaint is filed and that unjustified delay of a year or more raises a presumption of prejudice. Old bench warrant cases are sometimes dismissed on this ground, which is one reason a lawyer should review any case where you learned of the charge years after the incident. See What Happens If You Miss Court in California?.

Statute of limitations. A charge filed after the limitations period in Penal Code section 801 or Penal Code section 802 must be dismissed, subject to the tolling and extension rules for specific offenses. Prosecutors occasionally miss the one-year misdemeanor deadline when a report sits in review.

Dismissal After Diversion or Civil Compromise

Diversion programs. Several statutes end in a dismissal by operation of law when the defendant completes a program. Misdemeanor diversion under Penal Code section 1001.95 lets a judge divert most misdemeanors over the prosecutor's objection for up to 24 months, excluding domestic violence, stalking, and registrable sex offenses. Mental health diversion under Penal Code section 1001.36 covers misdemeanors and many felonies where a diagnosed disorder was a significant factor. Drug treatment diversion under Penal Code section 1000 covers simple possession charges, and military diversion under Penal Code section 1001.80 covers misdemeanors committed by current or former service members with service-related conditions. DUI charges are excluded from all of these by Vehicle Code section 23640. We explain each program in How Does Misdemeanor Diversion Work in California? and How Does Mental Health Diversion Work in California?.

Civil compromise. For most misdemeanors where the victim has a civil remedy, such as vandalism, minor theft, and property damage hit and run, Penal Code section 1377 and Penal Code section 1378 allow the court to dismiss the case if the victim appears and acknowledges satisfaction for the injury. Domestic violence offenses and offenses against officers are excluded. A restitution payment with a signed acknowledgment is the usual mechanism, and the dismissal bars any further prosecution for the same conduct.

Informal diversion and deferred entry. Some prosecutors offer their own programs, such as a class or community service in exchange for a dismissal, and some courts use deferred entry of judgment in which the defendant pleads but the plea is withdrawn and the case dismissed on completion. Read the paperwork carefully, because a deferred plea can count as a conviction for immigration purposes even if it is later dismissed, which is a reason Penal Code section 1016.3 requires immigration advice before any plea.

Dismissal for Discovery and Evidence Failures

Brady violations. The prosecutor must disclose evidence favorable to the defense under Brady v. Maryland and under Penal Code section 1054.1. When exculpatory evidence is withheld, the remedies under Penal Code section 1054.5 range from a continuance to exclusion of evidence to, in extreme cases, dismissal.

Lost or destroyed evidence. Under California v. Trombetta and Arizona v. Youngblood, the destruction of evidence whose exculpatory value was apparent, or the bad faith destruction of potentially useful evidence, can lead to sanctions including dismissal. Surveillance video that was overwritten after the defense requested it and blood samples that were not preserved for retesting are the typical examples.

Officer credibility. A motion under Pitchess v. Superior Court and Evidence Code section 1043 seeks records of prior complaints against the arresting officer for dishonesty or excessive force. When the records show a pattern, prosecutors frequently dismiss rather than put the officer on the stand.

Dismissal at Trial

Judgment of acquittal. After the prosecution rests, the defense can move under Penal Code section 1118.1 for a judgment of acquittal on any count the evidence does not support, and the judge must grant it if no reasonable jury could convict. An acquittal by the judge or the jury ends the case permanently under the double jeopardy clause.

Dismissal after a hung jury. When a jury cannot reach a verdict, the prosecutor may retry, but judges have discretion under Penal Code section 1385 to dismiss after one or more mistrials, and prosecutors often decline to retry a case that produced a strong minority for acquittal. Trial is the most expensive path to dismissal, but the willingness to go to trial is what makes every earlier path credible.

What Dismissal Does and Does Not Do

Records after dismissal. A dismissed case still leaves an arrest record. Penal Code section 851.91 allows a petition to seal an arrest that did not result in a conviction, and Penal Code section 851.8 allows a finding of factual innocence in the strongest cases. Penal Code section 1203.4, sometimes called expungement, is a different remedy that applies after a conviction and completed probation, which we explain in How to Expunge a Criminal Record in California. Government Code section 12952 limits how most California employers can use an arrest that did not lead to a conviction.

Refiling. A prosecutor's dismissal or a discharge at preliminary hearing usually allows one refiling in felony cases, and a dismissal on speedy trial or statute of limitations grounds is generally final. Ask your lawyer which kind of dismissal you received and whether the prosecutor's time to refile has run.

Family court and DMV. A dismissal in the criminal case does not automatically undo a DMV administrative suspension after a DUI arrest, which is a separate proceeding described in How Does the DMV Hearing Work After a DUI in California?, and it does not end a family court restraining order, which has its own lower standard of proof. Coordinating the criminal and family cases matters, as we explain on our domestic violence restraining order page.

Frequently Asked Questions

Can charges be dropped before the first court date in California?

Yes, if the prosecutor declines to file. Every arrest is reviewed by a filing deputy who decides whether the admissible evidence proves each element, and a lawyer can present exculpatory evidence to that deputy before the decision. Misdemeanors generally must be filed within one year under Penal Code section 802 and most felonies within three years under Penal Code section 801, so a case that has not been filed may still be filed later. Talking to the detective yourself rarely helps and often hurts.

Can the victim drop the charges?

No, only the prosecutor can. In California the case belongs to the People, and a complaining witness who no longer wants to proceed does not control it. A witness's absence limits what the prosecutor can prove under Crawford v. Washington, and that limit often leads to a dismissal or a reduced charge. Contacting the witness to ask them to drop the case is a separate crime and must never be done.

What is a Penal Code 1385 dismissal?

A dismissal in the furtherance of justice. Penal Code section 1385 allows the judge, on the prosecutor's motion or the court's own motion, to dismiss a case or an allegation with the reasons stated on the record. Prosecutors use it when a case has become unprovable or unfair to pursue, and judges use it to strike enhancements and prior strikes under People v. Superior Court (Romero). A defendant cannot force a 1385 dismissal by motion alone, but a defense presentation is usually what prompts one.

How does a suppression motion get a case dismissed?

By removing the evidence the prosecutor needs. A motion under Penal Code section 1538.5 asks the judge to exclude evidence obtained through an unlawful stop, search, or seizure. When the excluded evidence is the drugs, the weapon, or the breath result, the prosecutor cannot prove the charge and dismisses. The prosecutor bears the burden of justifying a warrantless search, and officers must testify and face cross-examination at the hearing.

Does completing diversion count as a dismissal?

Yes. Under Penal Code section 1001.95, Penal Code section 1001.36, Penal Code section 1000, and Penal Code section 1001.80, successful completion of the program results in dismissal of the charges, and the arrest is generally treated as if it had not occurred for most purposes. DUI charges cannot be diverted because of Vehicle Code section 23640. Immigration consequences of diversion depend on whether a plea was entered, so a noncitizen should get advice under Penal Code section 1016.3 first.

Is a dismissed case still on my record?

The arrest usually remains until it is sealed. A dismissal ends the prosecution but the arrest record stays in the state database. Penal Code section 851.91 lets you petition to seal an arrest that did not end in a conviction, and Penal Code section 851.8 provides a finding of factual innocence in the strongest cases. Government Code section 12952 restricts most employers from considering an arrest that did not lead to a conviction.

Talk to a Criminal Defense Lawyer About Getting Your Case Dismissed

Gramling Law Group pursues dismissals in misdemeanor and felony cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Clara Shortridge Foltz Criminal Justice Center, Van Nuys, Pomona, Long Beach, the Orange County justice centers, and the Ventura County Hall of Justice, serving the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options, including limited-scope representation for a single suppression motion, diversion request, or pre-filing presentation, so that clients in Riverside, Corona, Temecula, San Bernardino, Fontana, Rancho Cucamonga, and Ontario know the cost before committing. Call (909) 654-4575 or contact us through this website for a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.