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If you’ve been arrested, you’re facing a number of potential outcomes. The worst-case scenario is a trial, a conviction, and significant penalties. Many people think that the best-case scenario the opposite – a trial, an acquittal, and no penalties.

There is one other better scenario possible here in Colorado, though. It’s a decision known as “nolle prosequi,” or a “no file” decision.

A “no file” decision is a specific kind of dismissal that can keep your case from ever appearing on your record. Like a standard dismissal, this decision keeps your criminal record clean, but there are some differences between dismissals and no file decisions.

The Difference Between Dismissals and “No File” Decisions

Both dismissals and no file decisions result in your case not being fully tried. Either way, instead of coming to a judgment of guilt, the case is dropped entirely. How the case is dropped differs, and there are some important consequences to consider.

Dismissals Come from a Judge

Dismissals are performed by a judge. The judge looks at the evidence presented in a case and dismisses the charges for one or more of a variety of reasons; this may be done because the evidence is invalid, or because you helped with another case, or for a number of procedural reasons.

No File Decisions Are the Prosecutor’s Call

On the other hand, “nolle prosequi” decisions are made by the prosecutor and the state. Essentially, either before or during the trial (but before any judgment is made), the prosecutor decides that they will not be proceeding with the case. After a call of nolle prosequi, the case will not be pursued further and you as the defendant are free to go.

Dismissals Are Often Retried Later

Dismissals may be granted with or without prejudice. Cases dismissed without prejudice may be prosecuted again at a later date. When a case is dismissed for procedural reasons, having it retried is not unusual.

The Retrial of a No File Decision is Rare

Cases with a no file decision like this are very rarely retried. While they may technically be open for prosecution, the prosecutor themselves has decided that the case is not worth pursuing. This means a no file decision can offer a level of peace of mind that a dismissal can not.

Furthermore, no file decisions can be sealed in just a few weeks from the decision, keeping the charge and case from ever appearing on your record.

When a Prosecutor Is Likely to Make a No File Decision

No file decisions are often made by prosecutors for one of three reasons. The prosecutor believes either:

  • That the charges cannot be proven beyond a reasonable doubt,
  • That evidence demonstrates the defendant’s innocence, or
  • That evidence demonstrates a fatal flaw in the prosecution’s claim.

It’s unethical for a prosecutor to continue trying a case when one of these elements is present. If the prosecutor is aware of any one of these reasons, then continuing to try the case is a waste of time and a violation of the defendant’s rights.

Sharing Evidence with Prosecution Early

The prosecutor must be made aware of any facts that might lend to a no file decision quite early in the case. The earlier in the case the no file decision is made, the less time is wasted and the less time a charge will be on your record. A prosecutor is most likely to declare nolle prosequi before the case ever makes it to a judge.

When a Prosecutor Is Likely to Make a No File Decision

In order to increase the likelihood of a no file decision, your best option is to find expert legal representation before your case is ever filed. Your Colorado criminal defense attorney can potentially reach out to the prosecutor and resolve the matter before it ever reaches the courtroom. If you’re trying to resolve your case as quickly as possible, then you should reach out to an attorney as soon as you know charges will be filed (if not sooner).


About the Author:

Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012 & 2019” and a “Top 100 Trial Lawyers in Colorado” for 2012-2020 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  Additionally, Expertise names her to its lists of the 25 Best Denver DUI Lawyers and 21 Best Denver Criminal Defense Lawyers, both in 2020. Ms. Diego has also been recognized for her work in domestic violence cases.



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