Expungement vs. Sealed Records in Virginia

As part of a widescale overhaul of the criminal justice system in 2020 and 2021, Virginia lawmakers made some recent changes to the laws concerning criminal records and what part of a person’s criminal history may be disclosed. While the legislature made virtually no changes to expungement laws in the Commonwealth, they did create a brand-new concept that did not previously exist under Virginia law – the sealing of criminal records. While these changes to the law are still in their infancy and there is still much to learn about to what extent the new laws will really help keep criminal records private, we will try to give you a broad overview of what can be expected and what appears to be possible under the new laws.

What is the difference between an expungement and a “sealed record” in Virginia?

Under Virginia law, expungement is a concept which contemplates a particular charge being completely erased or deleted from a persons’ criminal history – as if it never occurred in the first place. Expungements are still only available if:

(i)          a charge is dismissed by virtue of a “not guilty” verdict

(ii)         a charge is “nolle prossed” by the Commonwealth

(iii)        a charge is otherwise dismissed “without conditions”. First offender dispositions and cases where a “facts sufficient finding” is made by the court are not generally eligible for expungement.

Under the new laws a “sealed record” may not be disclosed to many private employers and applicants may, under many circumstances not disclose a record that has been “sealed” to prospective private employers. It is important to note that there are a large number of exceptions to this, including, but not limited to persons applying for work as a police officer and disclosures that are required under federal law. Applicants must be very careful to make certain that they know when they must disclose the existence of a sealed record and when they may remain silent.

Records under the new Virginia Law may be “sealed” for many misdemeanors and some felonies. Unlike an expungement, certain records may be sealed under Virginia law even if the person was convicted of the offense.

What are the new laws dealing with sealed records in Virginia?

The following is a non-comprehensive list of some of the laws were passed in 2021 regarding sealed records in Virginia:

  • Records of underage possession of alcohol and possession of marijuana “first offender” dispositions can be sealed IF (i) seven years has passed since the date of dismissal AND (ii) the person has not been convicted of any other criminal charges in that seven-year time period.
  • Records of certain misdemeanor convictions (including but not limited to petit larceny, trespassing, underage possession of alcohol and possession of marijuana) may be sealed IF (i) seven years has passed since the date of dismissal AND (ii) the person has not been convicted of any other criminal charges in that seven-year time period.
  • Records of convictions for certain felony offenses can be sealed IF (i) a petition is filed with the Circuit Court asking for the record to be sealed AND (ii) the person has never been convicted of a Class 1 or Class 2 felony AND (iii) the person has not been convicted of a Class 3 or Class 4 felony within the last 20 years AND (iv) the person has not been convicted of any felony within the previous 10 years. 

Again, this list is not exhaustive and there are a large number of exceptions to law. For example, it does not appear that DUI’s or Domestic Assaults may be sealed under the new law under any circumstances. Further, it is important to note that although the law was passed in 2021, some provisions may not go fully into effect until 2025. This allows the Virginia State Police and courts time to update their computer systems to implement the changes correctly.

Persons interested in the parameters of the new law should consult with legal counsel to see if or how the new law involving sealed records applies to their unique situation.

Who can and cannot access a sealed record?

While the new laws were clearly passed with the intention to allow people with a limited criminal record to shield that information from potential employers, the effectiveness of the law has yet to be seen. While many “private employers” will be unable to gain access to a record that has been “sealed” under Virginia law there is a laundry list of exceptions to who qualifies as a “private employer”. The new law does not appear to apply to any of the following circumstances:

1.    Persons applying for employment with law enforcement

2.    Persons applying for employment with the federal government

3.    Persons applying for employment to the DMV or Department of Forensic Science

4.    Persons applying for positions in the Virginia judicial branch (clerk’s, magistrates, judges ect…)

5.    Prosecutors are permitted access to sealed records as are judges

6.    Social Services is permitted to access sealed records for certain reasons.

7.    Sealed records must be disclosed for firearms transactions.

Again, this list is far from exhaustive and there is a long list of persons and entities who can still gain access to a sealed record. While a sealed record does not have to be disclosed to many potential employers, the law is somewhat complicated as to when a “sealed record” must be disclosed and it is important to consult with counsel so that you do not run afoul of the law.

Understanding these brand-new laws can be overwhelming, but you do not have to go through it alone. In almost all cases, good legal counsel can help you to understand your rights and can help you navigate the pitfalls that may be out there when dealing with the process of sealing or expunging criminal charges.