By James Abrenio | Abrenio Choe | Fairfax, Virginia
Criminal Defense • Personal Injury • Medical Malpractice
Published: January 16, 2026
If you’ve been charged with a crime in Virginia and you hear the prosecutor say something like, “Your Honor, we move to nolle prosequi,” you may feel immediate relief—followed by confusion.
Is the case over?
Does that mean you “won”?
Can the Commonwealth bring the charge back?
In Virginia criminal court, nolle prosequi (nolle pross) is one of those legal terms that sounds final… but isn’t always final. Here’s what it means, when it happens, and what you should be thinking about if it comes up in your case.
Quick disclaimer: This article is for informational purposes only and is not legal advice. Every case is different. If you need advice on your specific situation, talk to a Virginia criminal defense attorney.
What is a “Nolle Prosequi” in Virginia?
A nolle prosequi is when the Commonwealth (the prosecutor) asks the court to end the current prosecution. Put simply: it’s the prosecutor saying, “We’re not going forward with this case—at least not right now.”
Virginia’s statute says a nolle prosequi can be entered only in the court’s discretion, upon motion of the Commonwealth and for good cause shown:
In real-world terms, a judge usually wants to know: Why is the Commonwealth asking to drop the case today? And does that reason amount to “good cause”?
The Part People Miss: “Without Prejudice”
Most of the time, a Virginia no-pross is entered “without prejudice.” That phrase matters.
- Without prejudice generally means the case can be brought again later (as long as the statute of limitations and other constitutional rules allow it).
- It is not the same as an acquittal.
- It is not automatically a permanent dismissal.
So yes—sometimes the Commonwealth can come back with the same charge.
Why Would a Prosecutor Nolle-Pross a Case?
There are a number of reasons the Commonwealth might move to no-pross:
1) They don’t believe they can prove the case
Sometimes the Commonwealth looks at the evidence and decides there isn’t a good faith basis to proceed—whether because of probable cause issues, credibility problems, or proof concerns.
2) A witness issue (the most common scenario near trial)
A key witness might be unavailable, refusing to cooperate, or suddenly changing their story.
3) It’s part of a negotiated resolution
Occasionally, a no-pross is the end result after someone completes conditions like community service, counseling, anger management, or similar steps—depending on the jurisdiction and facts.
4) Justice considerations
Sometimes prosecutors decide that even if they could technically obtain a conviction, proceeding isn’t in the interests of justice.
As a practical example (and one I’ve seen too often): in certain domestic situations, someone may be charged based on a moment captured on a phone—without the full context of manipulation or coercion behind it. A Commonwealth’s Attorney may decide the case shouldn’t go forward.
When a No-Pross Is a Great Outcome
If the Commonwealth no-prosses a case and there’s no realistic sign they’ll refile it, that can be a very good result.
For many misdemeanors, there’s also a one-year statute of limitations, which can reduce the chance of a case hanging over someone indefinitely. Felonies are different, and the analysis depends heavily on facts.
When Defense Counsel May Object to a Nolle-Pross
Here’s the part that surprises a lot of people: sometimes the defense does not want a no-pross.
Why? Because in certain situations, a no-pross can operate like a “reset button” for the Commonwealth—especially if the defense believes the prosecutor is seeking a no-pross only because:
- The judge denied a continuance, and
- The Commonwealth isn’t ready for trial, and
- The Commonwealth intends to fix the problem and come back stronger later
If the Commonwealth is unprepared, the defense may prefer the court to force the Commonwealth to proceed or dismiss outright, rather than allowing the Commonwealth to drop it and refile.
The Statute: Good Cause Required (But the Case Law Matters)
Virginia law says:
A nolle prosequi shall be entered only in the discretion of the court upon motion of the Commonwealth with good cause shown.
Va. Code § 19.2-265.3
At first glance, you might think: “If the prosecutor didn’t do their job, that’s not good cause.”
But Virginia appellate case law has made this area more complicated than people expect.
The Key Case: Duggins v. Commonwealth (2012)
One of the most frequently cited cases in this area is Duggins v. Commonwealth (Virginia Court of Appeals, 2012).
In Duggins, the Commonwealth sought a continuance because of a witness issue. The continuance was denied. The Commonwealth then moved to nolle prosequi the indictments. The court allowed it without prejudice, and the defendant was later re-indicted and convicted.
The Court of Appeals held that allowing the no-pross did not bar the later prosecution—even though the no-pross followed the denial of a continuance.
The case discusses the historical roots of nolle prosequi, and it emphasizes that courts often defer to the Commonwealth absent circumstances showing that the no-pross is being used as a weapon of mischief, oppression, vindictiveness, or prosecutorial misconduct.
In plain English: it can be difficult to win an argument that a no-pross should be denied unless you can show something beyond ordinary trial preparation problems.
Are There Any Limits? Yes—but They’re Fact-Specific
A no-pross doesn’t automatically mean the Commonwealth can do whatever it wants. There are still constitutional and procedural guardrails, including:
Double Jeopardy (limited situations)
Double jeopardy concerns generally arise when jeopardy has attached—typically once a jury is sworn (or in a bench trial, when evidence begins). If the Commonwealth tries to no-pross after that point, the analysis changes dramatically.
Speedy Trial / Prejudicial Delay
A no-pross and refiling can sometimes create delay issues, depending on timing and facts.
Prosecutorial Misconduct / Vindictiveness
If the Commonwealth is using the process to punish the accused for asserting rights, or engaging in unfair tactics, a defense attorney may have arguments and potential remedies.
These are not “one-size-fits-all” issues. They depend on the procedural posture, the record, and the judge.
The Practical Reality: Sometimes Strategy Matters as Much as Law
Even if a defense attorney believes a no-pross should be denied, there are practical considerations.
If the Commonwealth no-prosses and refiles, your case might involve:
- A new warrant or indictment
- Another arrest or summons process
- Added stress, cost, and disruption
- A longer timeline with uncertainty
So sometimes the conversation becomes: Do we fight the no-pross hard, or do we avoid the re-arrest cycle and pursue the least damaging path?
That’s a strategy call that should be made with counsel, based on your case’s risks and your life circumstances.
Bottom Line: “Nolle-Pross” Often Means the Case Is Dropped—but Not Always Gone Forever
A nolle prosequi can be a positive development—but it’s important to understand what it is and what it isn’t.
It often means:
✅ The current case is over (for now)
But it does not automatically mean:
❌ You were acquitted
❌ The case can’t come back
❌ The record disappears (expungement is a separate conversation)
Still have questions?
Make sure to check out our Personal Injury, Medical Malpractice & Criminal Defense Practice Pages where we’ve answered many other questions you likely have. Abrenio Choe is a Personal Injury, Medical Malpractice & Criminal Defense Law Firm representing individuals in Northern Virginia and throughout the Commonwealth. You can learn more about Abrenio Choe by visiting our About Us page. You can also read about some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.