Legal terminology needs to be precise. I prefer to get my client’s charge dismissed, instead of getting the charge null prossed. What is the difference?
- A dismissal is a formal ending of a case where the court finds that there is insufficient facts or evidence to support a conviction or finds another basis to end the case. The charge can not be re-initiated. A dismissal brings complete closure and it is assumed a dismissal is done with prejudice. (See Roe v. Commonwealth)
- Nolle prosequi (“null prosse”) is similar to a dismissal, however it allows a charge to be brought back or reinitiated at a later date. This latin term means “not prosecute.” Often times a prosecutor will request a “null prosse” in circumstances where they may realize that their evidence is weak or in circumstances where he or she may be trying to be lenient. Perhaps a witness didn’t show up to court or perhaps a nice Assistant Commonwealth Attorney can not move to dismiss a case because of directives from the Commonwealth Attorney or in order to maintain an image with the judge that he or she is tough on crime.
How does this apply in a typical traffic defense case? I had a client whose driver’s license was stolen. As a victim of identity theft, he was surprised when he received mailers from traffic defense attorneys stating that they were willing to help defend him on his numerous traffic violation charges. When I ended up representing this victim of identity theft, the Virginia Beach police officer suggested that we null prosse the case, but I asked him to agree to have the charges dismissed since this would bring finality for my client. When the police officer understood the legal difference he had no problem with it.
Sometimes a null prosse is the best I can hope for. The reality is, charges that are null prossed are hardly ever brought back. I had a client charged with Driving without a License under Va. Code § 46.2-300, in Norfolk. This charge is often referred to as NOL, for No Operator’s License. He was able to get his license instated before his court date. We wanted to avoid getting a criminal misdemeanor charge. In Norfolk Circuit Court the Assistant Commonwealth Attorney was willing to null pross the No Operator’s License charge to help us out. Virginia has a statute of limitations for misdemeanors. The general rule for Virginia is codified in Va. Code § 19.2-8, and for most misdemeanors such as reckless driving or driving without a license, the statute of limitations is 1 year from the date of the offense. For my client, this meant half a year more of waiting before he would be in the clear.