Expungement of Police and Court Record in Virginia

Expungement of Police and Court Record in Virginia

            An arrest for a criminal offense can have a devastating impact on your life, including, but not limited to, termination from your job, denial of future employment, loss or denial of financial aid for college, and loss of your home. Therefore, it is vital to ensure that police and court records accurately reflect your criminal history. You should take steps to expunge (“remove”) any inaccuracies and/or incidents that overstate your criminal history.  You should take steps to expunge charges for which you were not convicted.

            In many states, a person previously convicted of a criminal offense is eligible to expunge the record of his or her conviction and arrest after the passage of a specified period of time and completion of other statutory requirements (i.e. Illinois, Michigan, Oklahoma, etc.). However, in Virginia, one’s eligibility for expungement is severely limited. The most noteworthy of these limitations is that an individual cannot seek an expungement for an offense for which he or she has pled guilty, received a dismissal based upon a deferred disposition, or for which he or she was convicted.

Under Virginia Code § 19.2-392.2, a person qualifies for an expungement if he or she is acquitted of a criminal offense, the Commonwealth takes a nolle prosequi (Latin for “be unwilling to pursue” or “will not prosecute”) the criminal charge, or “is otherwise dismissed.” Additionally, a person is eligible for an expungement of a criminal offense upon presenting evidence to the court that the criminal charge arose as a result of identity theft. Again, please note that Virginia law does not permit expungement of offenses for which an individual pled guilty, was convicted, or received a dismissal upon completion of the terms of a deferred disposition where there is a finding of guilt.

In Necaise v. Commonwealth, 281 Va. 666, 708 S.E.2d 864 (2011), the court held that a defendant cannot have a felony charge expunged when he pleads guilty to a lesser-included misdemeanor offense. Id., 281 Va. at 669, 708 S.E.2d at 866.  However when a person is convicted of a misdemeanor that is not a lesser included offense, an expungement may be possible, but it will be important to establish that the plead is not a “bargain”– the person must show that he was in fact not guilty and not just taking a deal.

“When considering a petition for expungement of police and court records relating to a criminal charge, ‘the threshold determination . . . is whether the petitioner has a right to seek expungement of those records under an applicable provision of Code § 19.2-392.2(A).’” Brown v. Commonwealth, 278 Va. 92, 98-99, 677 S.E.2d 220, 223 (2009) (quoting Daniel v. Commonwealth, 268 Va. 523, 530, 604 S.E.2d 444, 448 (2004)). Under that Code section, expungement of a criminal record is ordinarily permitted in three circumstances: 1) if a person is “acquitted” of a crime; 2) the criminal offense is ended by nolle prosequi; or 3) the charge is “otherwise dismissed.” See § 19.2-392.2(A)(1)-(2). “In any proceeding for expungement, the petitioner has the burden of establishing the existence of one of those three criteria as a prerequisite to his right to seek expungement.” Eastlack v. Commonwealth, 282 Va. 120, 123, 710 S.E.2d 723, 724 (2011). “After concluding that a petitioner has the right to seek expungement under Code § 19.2-392.2(A), a circuit court must then determine 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.’” Brown, 278 Va. at 103, 677 S.E.2d at 226 (quoting Code § 19.2-392.2(F)).

Ordinarily, the process for obtaining an expungement is fairly straightforward. Nonetheless, the legal process and procedure can be quite daunting. Therefore, if you are seeking an expungement, you should hire an experienced attorney to represent and guide you through the process. Mistakes can make the difference between a successful expungement and an unjustified criminal offense remaining on your record.


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Thomas H. Roberts, Esquire

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Richmond, Virginia 23219
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The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.