Getting a Criminal Record Expunged in Virginia
Expunction of a criminal record occurs when a person’s criminal record is sealed, making it no longer public. Obtaining an expungement has numerous benefits. It makes it easier to find work or housing. In essence, an expungement clears a person’s record, allowing him to start over without the burden of a prior record.
A person may file a request to have all records related to the arrest and court proceedings expunged. This includes police reports, investigation reports, any reports leading up to the conviction, records from detention or correctional facilities, and court documents.
In Virginia, who can apply for the expungement of criminal records?
The examples below show when a person may seek to have a criminal record expunged.
A defendant in a criminal case may seek expungement if he enters a “not guilty” plea and is acquitted of all charges following his trial.
A defendant in a criminal case that the Commonwealth Attorney’s office decides not to prosecute may seek to have his records expunged by filing a motion to nolle prosequi the charge(s).
When there is a remedy by civil action, a defendant charged with a criminal assault and battery or a misdemeanor may seek expungement if the injured party acknowledges to the court that there has been satisfaction for the injury and the court grants an order discharging the case under Virginia Code 19.2-151.
When a criminal defendant uses a person’s name or identification without their consent in a criminal case, the person whose name was used can clear his or her name by obtaining an expungement.
A defendant who has been convicted of a crime and is later granted an Absolute Pardon due to an unjust conviction is eligible for expungement.
An expungement may be available to a defendant whose case has been dismissed.
Expungement of Juvenile Records
Most juvenile records are automatically sealed when the juvenile reaches the age of 19 or five years have passed since the crime. Vehicle code violations, including DUIs, are expunged when the juvenile reaches the age of 29. For juveniles, violent felonies are not automatically expunged.
After the case is dismissed, a defendant who writes a bad check but later pays the victim the full amount may be eligible for expungement. In the event of a criminal prosecution, this dismissal may allow the defendant to claim innocence.
Who is not eligible for a criminal record expungement in Virginia?
An expungement will not be granted simply because a person believes he was wrongfully convicted. An Absolute Pardon is required; a Conditional or Simple Pardon will not suffice.
In the state of Virginia, if a person pleads guilty to ANY crime, felony or misdemeanor, the crime cannot be expunged. It makes no difference whether the defendant is now claiming innocence or whether a long time has passed. A criminal conviction is permanently recorded in Virginia.
If a person enters a nolo contendre plea, he is not eligible for an expungement. A nolo contendre plea is not a confession of guilt, but rather an expression of the defendant’s willingness to be considered guilty for the purposes of imposing judgment and sentence. Entering this plea is incompatible with claiming innocence of the crime charged. 51 Va. Cir. 28 Bindra v. Commonwealth of Virginia (1999).
Similarly, entering an Alford plea (defendant maintains innocence but concludes that the evidence requires a guilty plea) precludes later claiming innocence in order to seek expungement.
If a defendant does not meet any of the eligibility criteria, the judge does not have the discretion to grant an expungement, regardless of how compelling his case is.
Misdemeanor Expungement in Virginia
If a defendant is acquitted of a misdemeanor charge and has no prior criminal record, he or she is eligible for expungement. However, if the Commonwealth Attorney’s office can demonstrate good cause why the expungement should not be granted at the petition hearing, the petition may be denied.
Felony Expungement in Virginia
To grant an expungement for a felony, the court may require clear evidence of the need for expungement, such as documentation from a prospective employer. The burden is on the petitioner (defendant) to show that “the continued existence and possible dissemination of information relating to the petitioner’s arrest causes or may cause circumstances constituting a manifest injustice.” 19.2-392.2-F of the Virginia Code