Quite often, clients ask if it is possible to have a charge or arrest “erased from their record.” The legal process for this in Virginia is called “expungement.”
An expungement is an action used to delete all police and court records
Pertaining to a criminal case when any of the following has occurred:
Acquittal, nolle prosequi, dismissal, absolute pardon,
Or an individual’s name is used in error.
A conviction for a violation of Virginia’s criminal code
Can have severe repercussions.
In fact, simply being arrested for a crime,
Even without a subsequent conviction,
Will create a criminal record that can negatively affect your job prospects,
Housing options, and eligibility for government services.
However, in specific circumstances,
Virginia law allows an individual to ask the court to wipe their record clean,
If the charges ended with an acquittal or dismissal.
This article will briefly discuss the process of expunging charges,
And the requirements to qualify for it.
Requirements for expungement
Virginia is, unfortunately, one of the hardest states
In which to get a charge erased from your record.
Virginia Code § 19.2-321 lays out who the law is intended to benefit: “innocent citizens.”
Expungement is only available to innocent persons,
Not to those who are guilty.
This is an extremely strict standard:
In general, only arrests or charges which resulted in a not guilty verdict,
Were null prossed by the Commonwealth,
Or were “otherwise dismissed” qualify to be expunged.
Note that charges dismissed under Virginia Code § 18.2-251,
The first offender statute
(which allows dismissal upon successful probation for certain minor drug offenses)
Do not qualify as “dismissed” charges for purposes of expungement.
Thus, the only way in Virginia to get a charged expunged
Is to have either had the charge dismissed by the Commonwealth,
Or by going to trial and having a verdict of not guilty be rendered.
Put more simply, you can never expunge a criminal conviction.
That means that if you were convicted of a crime in the past,
No matter how minor or how long ago,
In Virginia, it will be on your record permanently.
This is why it is important to consult with an attorney
If you are charged with a crime;
Successfully defending against the charge
Is the only way to get it successfully expunged later.
The expungement process
As mentioned above, requesting an expungement in Virginia
Is a highly technical and hard process.
Petitioners must follow every step of the process,
Or risk having their motion for expungement denied.
For this reason, it is always best to hire an attorney
To file an expungement petition on your behalf.
First, a petitioner must obtain the following items:
1. A copy of the warrant or indictment that relates to the charge to be expunged;
2. A petition motion that includes the charge to be expunged, the date of the end of the case in
court, the petitioner’s date of birth, full name, and an explanation as to why your charge
qualifies for expungement; and
3. A set of official fingerprints, usually on an official fingerprint card.
In order to have your record expunged,
The petition must be filed in the Circuit Court
Of the jurisdiction where you were originally charged.
The expungement is not an automatic process.
You will need to be fingerprinted,
And there is a waiting period.
During that waiting period,
The Commonwealth’s Attorney (the prosecutor)
Receives a copy of the petition,
And has an opportunity to object.
Your fingerprints are sent to the CCRE (central records in Virginia)
And your record is pulled.
Then, the petition is scheduled for a hearing in the Circuit Court.
All petitioners are required to obtain a new set of fingerprints for the expungement process.
The petitioner must obtain from a law enforcement agency
(for example, the Virginia State Police, or the Fairfax County Police Department)
One complete set of their fingerprints,
And must provide that law enforcement agency
With two copies of the date stamped petition
Showing proof that a petition for expungement has already been filed with a Circuit Court.
Misdemeanor vs. Felony
At the expungement hearing,
You and your attorney must demonstrate good cause to the Court
As to why you charge ought to be expunged.
If the charge to be dismissed is a misdemeanor,
The standard to meet for expungement is fairly low:
An innocent person is entitled to have a misdemeanor expunged,
Unless the Commonwealth objects.
The Commonwealth may object to the record being expunged for several reasons,
And an experienced attorney will consult with them beforehand
To prepare counter-arguments.
If the charge to be dismissed is a felony,
Then the standard is not only reversed,
But also higher:
The petitioner must demonstrate that,
If the felony remains on their record,
It would cause a “manifest injustice” to the person.
Examples of such “manifest injustices” includes difficulty gaining or keeping employment,
Or damage to your reputation.
Additionally, you have to demonstrate innocence.
If you have a clean record,
And the expunged record was a misdemeanor,
It is generally easier to convince the judge to grant your expungement.
If you have several convictions and arrests on your record,
Or are seeking to have a felony record removed,
It can be more difficult.
If the Court grants the expungement petition,
It will forward the petition to the Department of State Police.
It can take anywhere from 90 to 180 days
From the date the State Police receive the Order to Expunge for the record to be removed from public access.
Note: even with expungement, the record is not destroyed,
But removed from public access and sealed.
Once the record is expunged it can only be accessed by Court Order.
Talk to an attorney
Virginia’s criminal laws state that
An arrest for a charge will remain on an individual’s criminal record indefinitely.
While actual convictions can never be removed,
Any case that ends in an acquittal
Or other forms of innocence may be removed upon a petitioner’s motion.
This expungement can allow an individual to get a fresh start on life
Without the stigma of an arrest on their past.
However, the process for requesting the expungement can be complex.
It involves gathering vital information,
Writing a motion, and appearing in court.
A Virginia expungement lawyer (such as those at Priale & Racine)
Could help with each of these tasks.
An attorney is dedicated to helping wrongly accused individuals
To get their lives back on track.