Can the DA Refile Charges After a Dismissal in California? Penal Code 1387 Explained
The short answer: usually yes, once. In California, a dismissal before trial generally does not end the prosecutor's ability to charge you, because double jeopardy does not attach until a jury is sworn or the first witness testifies in a bench trial. What limits refiling is Penal Code section 1387, often called the two-dismissal rule, which generally allows one refiling of a felony and no refiling of a misdemeanor after a dismissal, along with the statute of limitations and your speedy trial rights. There are important exceptions in both directions. This guide from our California criminal defense practice explains when a dismissed case in Riverside, San Bernardino, Los Angeles, or Orange County can come back, when it cannot, and what to do while you wait.
Why a Dismissal Is Not the Same as an Acquittal
Dismissal versus acquittal. An acquittal is a finding by a jury or judge after trial that you are not guilty, and it is final. A dismissal is an order ending the current case without deciding guilt. Dismissals happen for many reasons: a witness fails to appear, the prosecutor is not ready, the magistrate finds insufficient evidence at the preliminary hearing, a key piece of evidence is suppressed, or the court dismisses in the interest of justice under Penal Code section 1385. Because no one has decided whether you committed the offense, the law generally lets the prosecutor try again within limits.
When double jeopardy attaches. The Fifth Amendment and article I, section 15 of the California Constitution bar a second prosecution for the same offense after jeopardy has attached. In a jury trial, jeopardy attaches when the jury is sworn, as the United States Supreme Court held in Crist v. Bretz (1978) 437 U.S. 28. In a bench trial, it attaches when the first witness is sworn. California codifies the bar in Penal Code section 1023. A dismissal at arraignment, at the preliminary hearing, or at a pretrial conference happens before that moment, so double jeopardy is not the defense. Section 1387 is.
Why the rule exists. Section 1387 exists to stop prosecutors from dismissing and refiling indefinitely to shop for a better judge, cure a defective pleading, or wait out a defense witness. The California Supreme Court has described the statute as a limit on harassment of defendants and on forum shopping, while still allowing one honest second attempt in felony cases. Understanding the rule tells you how much weight a dismissal really carries.
What Does Penal Code 1387 Say?
The general rule. Under Penal Code section 1387, subdivision (a), an order terminating an action is a bar to any other prosecution for the same offense if it is a felony and the action has been previously terminated once, or if it is a misdemeanor and the action has been terminated at all. In plain terms, a felony can generally be dismissed and refiled one time, and a second dismissal is final. A misdemeanor can generally be dismissed only once, and that dismissal is final. The rule applies to dismissals under the sections it lists, which include dismissals at or after the preliminary hearing, dismissals for lack of a speedy trial, and dismissals in the interest of justice.
What counts as a termination. Not every ending counts. A prosecutor's decision not to file after an arrest is not a termination of an action, because no action was ever filed. A dismissal of some counts in a plea bargain generally is not counted the way the statute contemplates. A dismissal of a felony complaint by a magistrate at the preliminary hearing under Penal Code section 871 does count. A dismissal because the prosecutor was not ready and could not show good cause for a continuance under Penal Code section 1050 counts. Whether a particular ending counts as a termination is often the whole fight, so get the minute order and read it carefully.
The exceptions. Section 1387 contains exceptions that allow refiling even after what would otherwise be the final dismissal. Subdivision (c) allows another filing of a felony in specified circumstances when the earlier dismissal was the result of excusable neglect, when a witness was unavailable despite the prosecutor's diligence, or when the dismissal was for other reasons the statute lists, provided the prosecutor did not intentionally cause the dismissal. Penal Code section 1387.1 separately allows a third filing of a violent felony when both prior dismissals were due solely to excusable neglect and not to the prosecutor's bad faith. The statutory language is detailed and has been amended, so confirm the current text before relying on any exception.
An alternative to dismissal. Penal Code section 1387.2 allows the court, with the consent of both the prosecutor and the defendant, to proceed on the existing accusatory pleading as though it had been dismissed and refiled, rather than actually dismissing. Prosecutors sometimes propose this at the preliminary hearing stage to save the one refiling they have. Whether to consent is a strategic decision, because agreeing can hand the prosecutor a second bite without the inconvenience of a new filing.
Can a Prosecutor Appeal or Reinstate Instead of Refiling?
Reinstating a complaint after the preliminary hearing. When a magistrate dismisses a felony complaint at the preliminary hearing, the prosecutor has two choices. The prosecutor can refile the complaint and start over with a new preliminary hearing, using the one refiling that section 1387 allows, or the prosecutor can move in the superior court under Penal Code section 871.5 within 15 days to compel the magistrate to reinstate the complaint, arguing that the magistrate erred as a matter of law. A reinstatement motion is not a new filing, so it does not use up the refiling. Defense counsel should watch for both paths after any win at the preliminary hearing. Our guide to what actually happens at a preliminary hearing explains how dismissals happen there.
Dismissal after a 995 motion. If the superior court grants a motion to dismiss under Penal Code 995 because the evidence at the preliminary hearing was insufficient, the prosecutor can appeal under Penal Code section 1238 or refile if a refiling remains available under section 1387. A dismissal under Penal Code section 995 counts as a termination for purposes of the two-dismissal rule.
Dismissal after suppression. When evidence is suppressed under Penal Code section 1538.5 and the case is dismissed because the prosecutor cannot proceed, the prosecutor may seek appellate review of the suppression ruling, and the statute places limits on relitigating the same search in a refiled case. Our guide to 1538.5 motions explains the sequence. A suppression win followed by dismissal is often effectively final, but your lawyer should confirm whether an appeal has been filed.
How Long Does the DA Have to Refile Charges?
The statute of limitations still applies. A refiled case must be filed within the limitations period for the offense: generally one year for misdemeanors under Penal Code section 802 and three years for most felonies under Penal Code section 801, with longer periods for serious offenses and some crimes with no limitation at all. Under Penal Code section 803, subdivision (b), the time during which a prosecution for the same conduct was pending in court does not count toward the limitations period, so the clock is paused while the first case was alive. Our guide to how long the DA has to file charges walks through the periods by offense.
Speedy trial after a refiling. When a felony is refiled, the statutory speedy trial clocks restart with the new complaint: the preliminary hearing must generally be held within 10 court days of arraignment if you are in custody, and within 60 calendar days in any event unless you waive time, under Penal Code section 859b, and trial must begin within 60 days of arraignment on the information under Penal Code section 1382. For misdemeanors, section 1382 requires trial within 30 days of arraignment if you are in custody and 45 days if you are out of custody. But the constitutional speedy trial right looks at the whole history, and a dismissal and refiling that drags a case out for years can support a motion to dismiss even if each statutory clock was technically met.
The constitutional speedy trial right. Under Barker v. Wingo (1972) 407 U.S. 514, courts weigh the length of the delay, the reason for it, whether the defendant asserted the right, and the prejudice to the defendant. In California misdemeanor cases, Serna v. Superior Court (1985) 40 Cal.3d 239 holds that a delay of more than a year between the filing of a complaint and the arrest or arraignment is presumptively prejudicial and shifts the burden to the prosecution to justify it. If a dismissed case sat for a long time before being refiled, or if you were never notified of the refiling and a warrant issued, a speedy trial motion may be available. Read how long a criminal case takes in California for the normal timelines.
What Happens When a Case Is Refiled?
A new case number and a new arraignment. A refiled case starts over procedurally. You will be arraigned again under Penal Code section 988, a new preliminary hearing will be set in a felony, and bail or release conditions will be addressed again under Penal Code section 1270 and In re Humphrey (2021) 11 Cal.5th 135. Prosecutors often refile by letter notifying you of the new date, but some obtain an arrest warrant, so keep your address current and respond to any notice immediately to avoid the problems described in what happens if you miss court.
The defense gets a second look too. A refiled case means a second preliminary hearing, which is a second chance to cross-examine the witnesses and to compare their testimony with what they said the first time. Prior testimony can be used to impeach a witness who changes the story, and the defense is entitled to the transcript of the first hearing and to full discovery under Penal Code section 1054.1 and Brady v. Maryland (1963) 373 U.S. 83. Our guide to how discovery works explains how to use the first case against the second.
The prosecutor has a problem to solve. Cases get dismissed because something went wrong for the prosecution: a missing witness, a suppressed search, a legal defect. The refiling only succeeds if that problem is fixed. If the witness still will not cooperate, the refiled case faces the same hurdle, which is why a second dismissal on the same ground is common in domestic violence and assault cases where the complaining witness has moved on. Our guides to what makes a criminal case weak and whether a victim can drop domestic violence charges explain these dynamics.
When Is a Dismissal Truly Final?
Second felony dismissal. Once a felony has been dismissed twice under the sections listed in Penal Code section 1387, and no exception applies, the bar is absolute and the defense can move to dismiss any third filing.
Any misdemeanor dismissal. A misdemeanor dismissed under a covered section generally cannot be refiled, subject to the statute's exceptions. Prosecutors know this, which is why they often seek a continuance rather than accept a dismissal when a witness is late, and why the defense should object to continuances without good cause under Penal Code section 1050.
Acquittal or completed diversion. An acquittal is protected by double jeopardy. A dismissal after successful completion of diversion under Penal Code section 1001.95, Penal Code section 1001.36, or Penal Code section 1000 is a dismissal the prosecution agreed to or the court ordered as the end of the process, and refiling the same charge after a completed diversion is not the practice. Our guides to misdemeanor diversion and getting charges dismissed cover these paths.
Expired statute of limitations. If the limitations period has run, counting the tolling under Penal Code section 803, the refiled case must be dismissed regardless of section 1387.
What Should You Do While a Dismissed Case Could Be Refiled?
Keep the file and the lawyer. Save the minute order of the dismissal, the preliminary hearing transcript if there was one, and all discovery. Tell your lawyer immediately if you receive any letter, call, or notice from the District Attorney's office, the court, or law enforcement. Do not assume silence means the case is over until the limitations period has passed.
Do not talk about the case. Investigators sometimes use the gap after a dismissal to re-interview the defendant or witnesses. The rules in what not to say to police and can I talk my way out of charges still apply. Anything you say can appear in the refiled case.
Consider sealing the arrest. If no refiling is possible or the limitations period has run, you may be eligible to seal the arrest record under Penal Code section 851.91, as explained in our guide to sealing an arrest record. Sealing while a refiling is still possible is more complicated, so timing matters.
Where refiled cases are heard. A refiled case is generally filed in the same court as the original: the Riverside Hall of Justice or the Southwest Justice Center in Murrieta for Riverside County, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, or the Victorville courthouse for San Bernardino County cases from San Bernardino, Ontario, Apple Valley, Hesperia, and Victorville, the Clara Shortridge Foltz Criminal Justice Center or a branch court such as Van Nuys or Pomona for Los Angeles County, and the Central Justice Center in Santa Ana for Orange County. Confirm the courthouse on any new notice and on the court's website.
Frequently Asked Questions
Can the DA refile charges after a dismissal in California?
Usually once for a felony, and generally not for a misdemeanor. Penal Code section 1387 bars a further prosecution after a felony has been dismissed twice or a misdemeanor has been dismissed once under the sections it covers, subject to exceptions for excusable neglect and witness unavailability. The refiling must also be within the statute of limitations.
Is a dismissal the same as being found not guilty?
No. An acquittal after trial is final under the double jeopardy clause and Penal Code section 1023. A dismissal before trial ends the current case without deciding guilt, and the prosecutor can often refile within the limits of section 1387 and the statute of limitations.
How long does the DA have to refile a dismissed case?
Until the statute of limitations runs, with the time the first case was pending excluded. Misdemeanors generally carry a one-year period under Penal Code section 802 and most felonies three years under Penal Code section 801, and Penal Code section 803, subdivision (b), pauses the clock while a prosecution for the same conduct is pending.
Can a case dismissed at the preliminary hearing be refiled?
Yes, once, or the prosecutor can ask the superior court to reinstate it. A magistrate's dismissal at the preliminary hearing counts as one termination under section 1387, so the prosecutor can refile a felony one time, or can instead move under Penal Code section 871.5 within 15 days to reinstate the complaint without using up the refiling.
Can a misdemeanor be refiled after dismissal in California?
Generally no. Under Penal Code section 1387, one dismissal of a misdemeanor under a covered section bars another prosecution for the same offense unless a statutory exception applies. This is why prosecutors fight hard for continuances in misdemeanor cases rather than accepting a dismissal.
Do I need a lawyer if my case was dismissed but could be refiled?
Yes. A lawyer can determine whether the dismissal counts under section 1387, track the limitations period, respond to any refiling notice, prepare for a second preliminary hearing, and pursue arrest record sealing under Penal Code section 851.91 when the case is truly over. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for refiled and dismissed cases.
Talk to a California Criminal Defense Lawyer About a Refiled Case
Gramling Law Group defends original and refiled felony and misdemeanor cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga, Victorville, and Barstow courthouses, the Clara Shortridge Foltz Criminal Justice Center, the Central Justice Center in Santa Ana, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for clients in Riverside, San Bernardino, Apple Valley, Victorville, Hesperia, Los Angeles, and Santa Ana. 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.
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