Dismissal vs. Expungement: Why Is the Difference Important?
If you’ve been arrested and charged with a crime, you’re probably hearing all sorts of legal terms. Your attorney may have even mentioned filing for a dismissal. But because an expungement comes after your case is over, they may be less likely to mention it. In fact, one recent news article estimated that 93.5% of records in Oklahoma that are eligible for expungement haven’t started the process.
This article will take a deeper dive into dismissal vs. expungement, including how they’re different and which one you need.
What Is an Expungement?
An expungement erases, or seals, your criminal record from public view. Successfully expunging your record has many benefits, but mostly it means you don’t have to say that you have a criminal record when formally asked (such as on a job or housing application). You can read about expungement on our website here.
What Is a Dismissal?
In a criminal case, dismissal is a decision by the court to end your case without reaching a verdict. When your case is dismissed, the judge is essentially announcing there’s no need for a trial. This means that your court case ends, but you’re not found guilty or innocent. A dismissal can happen any time after your arrest, including during your trial and even after, if you win a dismissal on appeal.
Types of Dismissals
The type of dismissal you receive affects whether charges can be filed against you later. The options are:
- Dismissed with prejudice means that your case is resolved and new charges can’t be filed.
- Dismissed without prejudice means that the prosecutor could reopen the case, if they’re able to overcome the reason for the dismissal. For example, if the case is dismissed because of insufficient evidence, they can gather more evidence and try again.
A deferred sentence is one area where the question of dismissal vs. expungement overlaps. When you receive a deferred sentence, the judge delays a finding of guilt and puts you on probation instead. If you successfully complete probation, your case is dismissed. Once it’s dismissed, you receive an automatic partial expungement, which removes your case from OSCN. You can apply for a full expungement a year later if your case was a misdemeanor. Deferred sentences are often given for first-time offenders.
Reasons for Dismissal
If you have a deferred sentence, your dismissal happens because you completed your probation. In other cases, reasons for dismissal can include:
- Expired statute of limitations
- Insufficient evidence
- Misconduct by the prosecutor or others involved in the case
- New information has come to light, like DNA test results
- Plea deals that agree to drop certain charges
- Recanted testimony
- Violation of your civil rights
- “Want of prosecution,” which means the state isn’t actively pursuing your case
Will a Dismissed Case Still Go On My Record?
Yes – in Oklahoma, you don’t have to be convicted of a crime for it to go on your record, because your criminal record includes your arrests and any past or current warrants. Employers and landlords may only ask on an application if you’ve ever been convicted of a crime, in which case you can legally answer “no” if your case was dismissed. However, your criminal history could still come up if they run a name-based background check, so it’s in your best interest to have your dismissal expunged.
Dismissal vs. Expungement
Dismissal and expungement are two very different legal terms. Let’s go over the main differences so you can see if either one applies to you.
Timeline
A dismissal can happen at any point between your arrest and a verdict, including before and during your trial. After your trial, you can still file to have your case dismissed, although it may be less likely. An expungement can only happen after your case concludes.
Eligibility
Any charge can be dismissed, including felony charges. If a judge finds there isn’t enough evidence, the police violated your rights, or the prosecutor committed misconduct, like witness tampering or presenting false evidence, they can dismiss any case.
In contrast, only non-violent felony or misdemeanor convictions are eligible for expungement (violent felonies are not eligible). But if your case was dismissed, you can have it expunged whether it was a felony or a misdemeanor.
Process
Only the prosecutor or the judge can dismiss your case. They can reach the decision to dismiss on their own, but it usually happens after your attorney files a motion to dismiss, which is a formal request. You can also win a dismissal on appeal. To expunge a record of a dismissal, you need to file a formal request, called a Petition to Expunge, and a judge will rule on your case.
The Bottom Line
Ultimately, if you want to be able to seal your criminal history from the eyes of potential employers, landlords, and others, you need an expungement, even if your case was dismissed.
Still wondering if you’re eligible? Have more questions about expungement? Contact the Tulsa Expungement Guy. We’ll help you learn more about dismissal vs. expungement.