Criminal Defense Q&A: What Are My Options After the D.A. Rejects My Case?

How long must you wait before you can be sure that the D.A. cannot file charges against you? Should you seek clarity from the D.A.? Or should you force the issue?

Question:

What does it mean to have assault with deadly weapon charge rejected? I was arrested and jailed for 4 days. While I was in the holding cell, others saw the judge/attorneys; I didn’t. An officer said the charge was dismissed and released me. I have tried to find where to get it expunged.  The officer I spoke with recently told me my case was rejected.  Does it go on my record. He couldn’t find it.

Answer:

When a case is rejected, it means that the prosecutor does not feel that there is enough evidence, at the moment, to warrant filing criminal charges against you. This does not necessarily mean, however, that you are off the hook.

A prosecutor can reject a case and instruct the police to investigate further in hopes of strengthening the evidence against you. Or a prosecutor can reject a case outright and terminate further police investigation.

Since you cannot know which choice the prosecutor made unless you obtain a copy of the prosecutor’s written rejection, it would be prudent to assume that the prosecutor rejected the case and instructed the police to conduct further investigation.

Generally, assault with a deadly weapon can be charged as a felony or a misdemeanor. Penal Code §§245(a)(1), (2), (4). If charged as a misdemeanor, prosecutors have up to 1 year from the date of incident to file charges. Penal Code §802(a). If charged as a felony prosecutors have up to 3 years from the date of incident to decide whether to file charges. Penal Code §801. (You may have to wait up to 6 years if you were charged with committing assault with a deadly weapon against a police officer or by using a machine gun. See Penal Code §§245(a)(3), (d)(1); 800.)

In essence, the ball is in the prosecution’s court. You can try contacting the prosecutor’s office and inquiring about the status of your case. However, if you don’t get an answer in writing, you may have to wait anywhere from 1 to 6 years to see if the prosecution will file charges against you.

It is premature to expunge your matter; expungement cannot occur until after you have been convicted and complete probation. Penal Code §1203.4(a)(1). But,if you would prefer not to wait several years to hear back from the prosecutor, you may try to force the issue and attempt to seal your record of arrest.

Continue reading criminal defense attorney Michael J. Ocampo’s answer at Avvo: What does it mean to have an assault with deadly weapon charge rejected?