When someone hears that a case was "dismissed," the natural reaction is relief. But in the criminal justice system, a dismissal is not always the end. In some situations, prosecutors in Nevada can refile charges even after a case is thrown out. So when does double jeopardy protect you—and when can the State come back for round two?

What Is Double Jeopardy?

The Fifth Amendment of the U.S. Constitution guarantees that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This protection is mirrored in Nevada law. But despite its strong language, double jeopardy doesn't block every attempt to refile charges. It only applies when a defendant has been placed in "jeopardy"—a legal term of art meaning a trial has begun.

In a jury trial, jeopardy attaches when the jury is sworn in. In a bench trial, it attaches when the first witness is sworn. Before that point, dismissals—whether voluntary or due to lack of evidence—often don't trigger double jeopardy protections.

When Can the State Refile Charges?

There are several common scenarios where prosecutors in Nevada can legally refile charges after a dismissal:

Dismissal at Preliminary Hearing:
If a judge finds insufficient evidence at a preliminary hearing and dismisses the case, the State may still refile the charges. That's because jeopardy doesn't attach during preliminary proceedings. Prosecutors might gather new evidence or clean up a sloppy presentation and file the exact same case—sometimes more than once.

Voluntary Dismissal by the State (NRS 174.085):
Nevada allows the prosecutor to dismiss charges without prejudice before trial. “Without prejudice” means they reserve the right to bring the case again. Unless the case is dismissed "with prejudice"—which usually requires misconduct or bad faith—the State often has room to refile.

Dismissal Due to Procedural Defect:
If a charge is dismissed because of a technical or procedural issue, such as a flawed complaint or missing witness, the court might permit re-filing once the defect is cured.

When Does Double Jeopardy Block Refiling?

Double jeopardy becomes a shield only once the trial has formally begun. If the jury is sworn and the case proceeds, the State gets one shot. A not-guilty verdict is final—even if the jury was wrong or if new evidence later turns up.

The protections also extend to situations where the State deliberately provokes a mistrial to avoid an acquittal. In those cases, the court may bar a retrial under double jeopardy principles.

Why It Matters

Understanding the limits of double jeopardy is crucial. Just because a case is dismissed doesn't mean it's over. The prosecution may regroup, strategize, and come back. That's why dismissals should always be pursued carefully—ideally with the aim of getting the case thrown out with prejudice, which bars future prosecution on the same charge.

Defending Against Refiled Charges

At Liberators Criminal Defense, we don't just fight cases—we fight the system's second chances to come after you. If charges have been refiled, there may be a strategic basis to challenge them. That includes arguing prosecutorial misconduct, lack of new evidence, or improper use of the justice system to harass or pressure defendants.

We've seen what happens when people assume a dismissal is final. Don't wait until the State comes back swinging. If your case was dismissed—or if you're facing refiled charges—contact us. The fight isn't over until your rights are secure.