Can I get my Virginia Criminal Record Expunged?

Experienced attorneys in Fairfax answer all kinds questions about expungement including: who is eligible for an expungement; which charges can be expunged and which cannot; what is the process for getting charges expunged in Virginia; and whether you should hire a lawyer to handle your expungement.

Can I get my criminal charge expunged?

A criminal record can have long lasting and wide ranging consequences. That is one of the most important reasons to hire an experienced and skilled criminal defense attorney when you are facing criminal charges to begin with.

After their case is over, many clients have questions about what will appear on their criminal record, and whether it is possible to get that record expunged. We hope to answer most of those questions on this page. In addition, we hope to provide information on the new expungement law which went into effect on July 1, 2021, which significantly expands eligibility for record-clearing by petition and establishes an automatic sealing process to be phased in by July 1, 2025.

What is an expungement? 

Expungement is the statutory remedy to remove law enforcement and court records of innocent people in cases that resulted in a finding of not guilty, dismissal, or nolle prosequi (not prosecuted).  The expungement procedure in Virginia provides relief to individuals who have been charged with crimes but not convicted.   An order of expungement will result in the removal of all law enforcement and court records about an arrest which would otherwise appear on a criminal background check, severely impacting your ability to seek employment, obtain a security clearance, or otherwise pass a background check. If you are successful in obtaining an expungement, you may legally deny that you were ever arrested or charged with that crime. Virginia Code Section 19.2-392.4 explicitly forbids employers (including state agencies) from asking about expunged charges, and explicitly authorizes applicants to deny the existence of charges which have been expunged.

With today’s technology, landlords, employers, and colleges use background checks to screen applicants for criminal records. A criminal record, even if the charges were dismissed, affects your future. 

Eligibility for an expungement in Virginia

Virginia courts have been clear that the purpose of the expungement statute is to protect the rights of people who were actually innocent, but wrongfully accused of a crime. Unlike many other states which offered the possibility of an expungement after the passage of some time, to give people a clean start, Virginia has always had an infinite memory when it comes to criminal convictions.  Any and all convictions in Virginia remained on your record forever.  So, if you pleaded guilty or no contest (nolo contendere), or even if you pleaded not guilty but you were found guilty by the court, that became a permanent record.

Virginia’s Clean Slate Act:  What does it mean for you?  “Sealing” vs “Expungement” explained.

In 2021 the Virginia General Assembly passed a new law, nicknamed “The Clean Slate Act,” that transforms the effects of having a criminal record by introducing a new concept called “sealing” convictions.   While an expungement order requires the complete removal of all law enforcement and court records, sealing simply restricts the dissemination of those records.  Once the new law goes into effect, sealed convictions will only be accessible for certain limited purposes (listed here) which do NOT include background checks conducted for standard employment or by educational institutions.  So on the one hand, sealing expands the number of people who are eligible for relief to include those who were convicted or found guilty of their charges, but on the other hand, the records are not completely removed and will still be accessible for some purposes.  Therefore, even if your case has been sealed, we still recommend you go through the expungement process if you are eligible, especially if you work in a field that may require a security clearance.  

How Will the New Sealing Law Work?

Under the new law, some criminal records will be automatically sealed as soon as the case is over (for example cases resulting in dismissals, acquittals, or nolle prosequi), while others will be automatically sealed after the passage of a certain amount of time, and still others will be eligible for sealing but only if a petition is filed with the court.    

Automatic Sealing:

  • Charges involving mistaken identity or unauthorized use of identifying information;
  • Deferred dismissals for possession of marijuana and underage possession of alcohol;
  • Misdemeanor non-convictions (excluding traffic infractions);
  • Misdemeanor convictions for the following:
    1. Underage possession of alcohol,
    2. Petit larceny,
    3. Concealment,
    4. Trespass after having been forbidden,
    5. Instigating others to trespass,
    6. Trespass on posted property,
    7. Possession with the intent to distribute marijuana,
    8. Possession of marijuana, and
    9. Disorderly conduct.

Sealing by Petition:

Misdemeanor convictions other than those listed above, and convictions of Class 5 or 6 felonies, as well as Felony Grand Larceny, will be eligible to be sealed if a petition is filed and granted by the judge.  The law requires that the person must have no new charges for 7 years in the case of misdemeanors, or 10 years for felonies.   The person must also demonstrate that they have been rehabilitated from any substance abuse issues they may have had, and that the continued dissemination of these records is causing them a hardship.  You can find the complete text of the petition-based sealing law here.

Effective Date of the New Law

Unfortunately, when they passed this law the General Assembly set certain administrative conditions for the courts and law enforcement to meet before it will go into effect.  The deadline for these conditions to be met – and therefore the latest effective date of the Act – is not until July 1, 2025

So for the time being, the expungement process remains the only way to get your criminal record cleared in Virginia, and the eligibility requirements for that remain very limited.

What about First Offender programs resulting in the charge being dismissed?  Can I get that expunged?

Unfortunately, those who had their case dismissed after successful completion of one of the “first offender” programs are not eligible for expungement under Virginia law. These include “251” dispositions in marijuana or other drug cases; performing community service for dismissal in shoplifting or trespass cases; and dismissals after anger management on first offense domestic violence charges. If you pleaded guilty, no contest, stipulated that the facts were sufficient for a finding of guilt, or even if you pleaded not guilty but the judge found the facts sufficient for a finding of guilt, your charge is not eligible for an expungement under Virginia law even if it was ultimately dismissed.  The Supreme Court of Virginia had been crystal clear on this point.  Click here if you want to read one of the leading cases on this issue: Brown v. Commonwealth, 2009.

Note that this does not necessarily mean that it was a mistake to accept a plea bargain for a first offender program dismissal. If the evidence was overwhelming and that was the best offer the prosecutor was willing to make, it was possibly still your best option. While you may not be able to avoid people finding out about the historical fact that you were once charged with that offense, at least you do not have a criminal conviction. So if anyone asks if you have “a criminal record,” you can still say no. Only if the question specifically asks if you have ever been charged with a crime, do you have to answer yes.

What about a dismissal after a “general continuance?”  Can that charge be expunged?

The answer is yes. Sometimes attorneys are able to negotiate an out-of-court deal with the prosecutor, whereby if the client completes certain tasks (community service, clean drug tests, etc…) the prosecutor will agree to enter a dismissal by nolle prosequi at the next court date. In those cases, since there is nothing in the record to indicate anything other than the fact that the case was continued, and then the charge was ultimately dropped by the prosecution, the defendant would still be eligible to have the charge expunged.

Some of my charges were dropped or reduced in a plea bargain. Can those charges be expunged?

It depends. For example, if you had a felony Grand Larceny charge reduced to a misdemeanor Petit Larceny charge pursuant to a plea agreement, courts have held that you cannot get the original felony charge expunged because the final charge is considered a “lesser included offense” of the original charge. However, if the charge was amended to a completely different type of offense, you may still be eligible for an expungement. Some common examples of this would be a DUI that is amended to Reckless Driving, or Assault and Battery amended to Disorderly Conduct. Contact the Sprano Law Firm for answers concerning your eligibility for expungement.

My charge was dismissed in court but it is still showing up on my record.  Wasn’t it supposed to be expunged?

The answer is no. Just because you are eligible for an expungement, does not mean that it will happen automatically. The new law will eventually seal charges that were dismissed but it may not go into effect until July 1, 2025.   As of now, you must initiate a separate legal action, by filing a Petition for Expungement in the Circuit Court of the jurisdiction your original charge was heard by the Court.

What is the process for obtaining an expungement?

The process for obtaining an expungement in Virginia is set forth in Virginia Code Section 19.2-392.2.   It includes the following steps:

  1. Obtaining certified copies of the final disposition of your charge(s).
  2. Filing a Petition for Expungement in the Circuit Court.
  3. Paying a filing fee.
  4. Providing a copy of the petition to the Commonwealth’s Attorney.
  5. Obtaining your fingerprint card from a local law enforcement agency.
  6. Sending the fingerprint card along with a copy of the petition to the state police so they can perform a criminal history records check.
  7. Scheduling a hearing with a Judge in the Circuit Court to determine if the expungement should be granted or denied.
  8. At the hearing, the Judge will determine a) whether you are eligible for an expungement, for the reasons discussed above; and b) whether “the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner.”

Do I need to hire a lawyer to get my charge expunged in Virginia?

While it is possible to file for and obtain an expungement yourself, the process can be complicated and the new law adds to the difficulty. Therefore it may be advisable to hire an experienced attorney to assist you through this process.  Attorney Alene Sprano is an experienced exungement lawyer who is highly qualified to assist you in filing the petition and arguing the merits of the petition before all courts in Northern Virginia.  Under the new law, the opportunity to clear your previous criminal charges is paramount to providing new opportunities for your future. You need an attorney who has experience with petitioning the circuit court for expungement/sealing of criminal charges.  You can contact Alene directly by email by clicking

 

10603 Judicial Drive
Fairfax, VA 22030

Toll-Free: 866-936-5614
Phone: 703-763-0979
Fax: 703-591-1517