Expungement in Virginia: Limitations and benefits

There are pros and cons to the expungement process. This piece provides some basic information.

Expungement is the process used to erase, destroy or seal state criminal arrest records and, when successful, essentially erases the record of arrest from the petitioner's criminal history. Expungement is mostly a creature of state law and, as such, the ability to get the existence of a criminal arrest expunged from one's record will depend on the laws of the state in which the petitioner was charged with a criminal offense.

In Virginia, a conviction for a criminal offense cannot generally be expunged unless a pardon is first obtained from the Governor. To the contrary, only arrest records can be expunged in Virginia and then, only if (i) the petitioner was acquitted (found not-guilty after a trial), (ii) the Commonwealth "discontinues" the prosecution by virtue of a "nolle prosequi", or (iii) the charge is "dismissed without conditions." Most "first offender dispositions" for alcohol and drug offenses in Virginia cannot be expunged, even if the charge is ultimately dismissed by the Court.

Benefits of expungement

The presence of criminal accusations and charges on one's criminal record can result in the person having great difficulty in obtaining employment and obtaining certain security clearances. An individual can erase the existence of an arrest(s) from their record by virtue of a petition for expungement. Again, it must be noted that the expungement process will not erase the existence of a conviction for a criminal offense.

If granted, expungement will result in the removal of the record of arrest from the applicant's criminal record. Further, all public records of the arrest are also purged (including electronic records). This means if an employer checks an applicant's record to see if they have previously been charged with certain criminal offenses, the expunged event will not appear on the record. Further, if a school or university checks a potential scholarship applicant's criminal history, the event will not appear on the criminal history record. A successful expungement can help an individual avoid the stigma that can be attached to being charged with, but not convicted of certain criminal offenses.

Limits of expungement

It must be said that the expungement process is a very precise legal process and does not apply to a criminal record as a whole. Expungements can only be granted as to individual charges although it may be possible to expunge more than one charge at a time. Further, while the process does result in the removal of the records held by the police and the courts, it will not remove any additional documentation that may be picked up by or retained on social media or by the press.

Expungement and juveniles

In Virginia, juvenile records are treated differently from adult records and there are much stricter laws concerning the release of juvenile records to the public. In certain situations, automatic expungement will occur once the juvenile reaches adulthood, but this is not generally true of any "juvenile felony" charges or convictions. Because juveniles are not charged with "crimes" in Virginia (they are charged with "delinquent acts") juvenile charges are not generally eligible for expungement because the law of expungement applies only to "criminal offenses". In many instances, this will not matter due to the general inability of the public to access juvenile records.

The expungement process

In order to receive an expungement, an applicant must complete a Petition for Expungement in the city or county where the charge originated. In order for the court to approve the request, the application must be completed properly and include all necessary information. It must also generally be accompanied by certified copies of the charges and/or the record of acquittal or dismissal. Further, there can often be a hearing held in front of a Circuit Court judge to determine whether or not the expungement should or should not be granted.

It is important to note not all criminal activity is treated equally under the law as it applies to expungements. The law differentiates between felony charges and misdemeanor charges and it is generally easier to obtain an expungement for a dismissed misdemeanor than for a dismissed felony. This is not to say that felony charges cannot be expunged, only that it is harder to obtain.

The expungement process can be complex and a knowledgeable and experienced attorney can be vital to determining the likelihood of success on these types of cases. An attorney who is experienced in this niche area of the law can provide those seeking help with the necessary guidance to navigate the legal system and can increase the chances of obtaining expungement of eligible arrest records.