EXPUNGEMENT OF CRIMINAL RECORDS IN VIRGINIA: VA CODE 19.2-392.2
Why you need a lawyer:
- Clean up any criminal record or history
- Expand future employment concerns
- Pass needed security clearance
- Military or government background checks
- College disclosures
- Pass any other needed background checks
What I can do for you: File a petition with the Circuit Court of the county where you reside or where the charge occurred. Argue under the existing law that you are entitled to an expungement of the charge so it can be essentially erased from your criminal history or record. Also, not just the charge but any recording that you were even charged at all with the offense.
What I try to do: Negotiate with the Commonwealth Attorney beforehand not to oppose the motion or petition so that it can be entered by the judge without any opposing argument. If this is not the case, then argue that there is a compelling reason that this must be done or it is a manifest injustice to your future that outweighs the Commonwealth’s interest in having it remain on your record. A positive outcome when you do not meet the requirements for expungement cannot be guaranteed in every case.
What expungement does: Why it is so important
An expungement in Virginia wipes a person’s criminal record clean and has many advantages beyond the obvious ones of employment, job opportunities and necessary security and background checks. When it is granted your criminal record is sealed, making it no longer available to the public. This extends to all recordings relating to the arrest itself including police reports, record of the arrest, related court documents and detention records. This is why it is so important even if your actual NCIC (criminal transcript) shows the charge was dismissed or nolle prosequi against you; there still may be 5 to 6 written recordings of the offense out there for the general public to see or find.
Who is entitled to expungement in Virginia under the VA code?
- A person entering a not guilty plea who is acquitted of all charges.
- If the prosecutor decides not to go forward and enters a nolle prosequi to the charges, they can be later expunged.
- If a criminal assault and battery and accord and satisfaction was entered under 19.2-151.
- A person whose case was dismissed without a prior finding of guilt.
- A person whose name was used without his consent in a criminal case.
Absolute entitlement: No criminal history and a misdemeanor charge
If a defendant is acquitted of a misdemeanor charge and has no prior criminal record, he shall be entitled to expungement.
For felony charges, it is a little harder; the court may require clear evidence and documentation from an employer for the overwhelming need for expungement. It is the defendant’s burden to prove that further dissemination of the information would constitute a manifest injustice.
Who is not entitled to expungement in Virginia:
- Anyone who pleads guilty, nolo contendre, to any misdemeanor or felony in the state of Virginia. It is irrelevant if a long period of time has passed and the person is now claiming innocence.
- A dismissal that arose from a deferral program in which the court ordered various things for the defendant to perform and then committed to a dismissal if the defendant completed them. This is the usually the case in a lot of first offender laws and they are generally not expungable for they start with an admission of guilt.
“Criminal Record”: A basic and important question answered
What is your Criminal Record? Technically it means a record of criminal convictions. If you have no convictions, in reality you have no criminal record even though you may have been charged many times and there are written recordings of these charges everywhere from the court records to the police arrest transcripts.
So the problem is that there can be much negative information out there in the system even though you have never been convicted of anything. People now confuse Record (conviction history) with Record (a recording of a charge), and this has been made much worse in the last decade due to computer dissemination of inaccurate information, such as the selling of information from arrest records that are inaccurate and have no relation to the final outcome of the case.
Common horror story: “I was charged with grand larceny. It was a big mistake; the court dropped the charge and the police officer even apologized. I go to a job interview and they explain I have been arrested for a felony and their information does not show any disposition where I was cleared.”
Problem: Their source is just picking up an arrest record disseminated from any number of unknown sources. This is why these “recordings” need to be expunged if at all possible.