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 expungment.
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.
What is an expungement?
Expungement is the statutory remedy to seal law enforcement and court records of innocent people in cases that resulted in a finding of not guilty, dismissal, or nolle prosequi (not prosecuted). In other words, the expungement procedure in Virginia allows for 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.
Who is NOT eligible for an expungement in Virginia?
Virginia law is 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 offer the possibility of an expungement after the passage of some time, to give people a clean start, Virginia has an infinite memory when it comes to criminal convictions. Any and all convictions in Virginia will remain 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, you will never be able to have the records of that case expunged.
What about First Offender programs resulting in the charge being dismissed?
Unfortunately, the same rationale also applies to those who have had their case dismissed after successful completion of one of the “first offender” programs. These can 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. Please do not get lured in by unknowledgeable or unethical lawyers willing to take your money by selling you a pipe dream. The Supreme Court of Virginia has 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 probably 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 short 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.
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. You must initiate a separate legal action, by filing a Petition for Expungement in the Circuit 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 sometimes be complicated. Therefore it may be advisable to hire an experienced attorney to assist you through this process.
Please contact us by phone or email today to discuss your options.