SAN DIEGO -- Raising the possibility that criminal charges could resurface, a prosecutor argued Friday that the judge who dismissed the case against a woman accused of poisoning her Marine husband does not have the power to dismiss the case "with prejudice," which would prevent the charges from ever being filed again.

On April 17, the District Attorney's Office made a motion to dismiss "without prejudice" murder charges against Cynthia Sommer, who was accused of giving 23-year-old Todd Sommer a fatal dose of arsenic in February 2002 so she could collect $250,000 in life insurance.

Doctors at Balboa Naval Hospital originally determined that the victim died of a heart attack, but a military lab tested his tissue and found unusually high levels of arsenic in his liver and kidneys.

As Cynthia Sommer was set for a retrial, the District Attorney's Office requested that the charges against the mother of four be dismissed, saying tests on additional tissue samples from the victim showed no arsenic.

An expert said the previous test results were "physiologically improbable" and that contamination was possible.

In court Friday, Deputy District Attorney Laura Tanney told Judge John Einhorn that the court doesn't have the authority to dismiss the case with prejudice, a position that Sommer's attorney, Allen Bloom, disagreed with.

"The penal code allows for the dismissal," Bloom told the judge.

The attorney said there was no evidence that a crime was committed.

Bloom said he was "astounded" that prosecutors won't dismiss the case with prejudice, leaving the possibility that charges could be filed again.

He called the District Attorney's Office refusal to dismiss the case entirely a "face-saving" maneuver.

Tanney said prosecutors have never agreed that Sommer is innocent.

Einhorn set a hearing on the matter for May 30.

Bloom said he filed a motion 10 days ago asking the District Attorney's Office to turn over all communications in the case, but prosecutors have denied his request.

Sommer, 34, was convicted of first-degree murder in her husband's death but a judge last year granted her a new trial, saying her original attorney made mistakes that affected the outcome of the first trial.

In that trial, Judge Peter Deddeh originally excluded evidence that Sommer had sex with several Marines and participated in a wet t-shirt and thong contest in Tijuana after her husband's death, but allowed it in after the defendant's mother testified that Sommer behaved like a grieving widow in the days after Todd Sommer died.

Sommer testified that she paid $5,400 for breast implants in the days after Todd Sommer died, but said she and her husband had talked about her doing it.

Today, Sommer said outside court that she will continue to fight to clear her name.

"I don't know why they're pushing so hard to save face," Sommer said of the District Attorney's Office.