Wednesday, August 24, 2016

Virginia Expungements

It should be expected by anyone who knows anything about Virginia law that expungement is a narrowly-tailored process that is not meant for everyone. After all, the Commonwealth is historically very conservative when it comes to matters involving her criminal justice system. Luckily, we can take a crack at explaining the nuts and bolts of the process a few short pages.

For those readers who do not know, expungement is a process by which an individual petitions the Court to close off records of an alleged prior criminal offense and make those records unavailable for public view. Essentially, expungement is a tool that can be used to remove any remaining stigma of criminal process that a person may be suffering as the result of an arrest. However, not every charge may be expunged in Virginia.

First, one has to determine if the charge seeking to be expunged is eligible. Under Virginia law, only three types of outcomes to a criminal case are eligible: 1. If the charge went to trial and an acquittal was entered; 2. If a nolle prosequi (to not prosecute) was granted on the Commonwealth’s motion; or 3. If the charge was “otherwise dismissed.” Therefore, if the charge in question went to trial and the defendant was found “not guilty,” then the charge is eligible for expungement. Also, if the defendant and his/her attorney attended court and the Commonwealth chose to nolle prosse the case, then that charge is also eligible for expungement. Finally, if the charge proceeded to a hearing and a dismissal was entered, it would be expungable. 

All that being said, the “otherwise dismissed” eligibility route does NOT include dismissals by deferred finding or suspended imposition of sentence. Essentially, to simplify the distinction, there should be no plea and no finding. The legislature seemingly was contemplating a dismissal as a result of a motion to suppress or a motion to strike when they included this language in the statute. Additionally, the legislature specifically included dismissal by accord and satisfaction as a viable outcome for expungement when drafting the statute. Bottom line: if your understanding of the outcome in your case is that the charge was “dismissed,” you should probably consult with an attorney to figure out whether or not you meet the eligibility requirements.

Although it is a relatively novel idea, Virginia law has made certain cases eligible for “partial expungement.” In cases where a person is charged with one criminal offense but the charge happens to get amended to that of a criminal offense that is NOT a “lesser-included offense,” then the original charge is eligible for expungement. For example, if a person is arrested and charged with Grand Larceny and on their court date the charge is amended to Trespassing, then the record for the arrest for Grand Larceny would be eligible for expungement. In contrast, if that same Grand Larceny was instead amended to a charge of Petit Larceny, then it would NOT be eligible for expungement because Petit Larceny is a lesser-included offense of Grand Larceny. Take note that if this “partial expungement” ends up being successful, then only the arrest record of the original charge gets sealed. Thus, the remaining conviction (in our example, for Trespassing) would still remain. 

Assuming that a charge meets the eligibility requirements, one should turn their attention next to the type of charge (misdemeanor or felony) and any prior criminal record held by the petitioner seeking expungement. The reason that this is important is because Virginia law allows for a presumption for expungement in cases where the charge sought to be expunged is a misdemeanor offense and the petitioner has no prior criminal record.

If the charge is a felony, the petitioner has a prior criminal record, or both, then the petitioner will need to show that the continued existence of this charge on his/her record causes or may cause a “manifest injustice.” In other words, under this set of circumstances, the petitioner has to convince the Circuit Court judge that the continued existence of the arrest record is harming or may harm their ability to proceed with their lives as planned. The judge may also require the petitioner to show manifest injustice in cases of “partial expungements” discussed above. As you can imagine, these are the scenarios where an attorney is an absolute must.

On your hearing date, the judge will determine whether or not to grant the petition for expungement. If the petition is granted, then an order will be sent to the Department of the State Police, who will oversee the sealing of records. Upon completion of this process, the Department of State Police will produce and mail a letter to the petitioner or his/her attorney stating that the expungement has been complete. The process from initial filing to closure letter can take varying amounts of time depending on the type of case, the home jurisdiction, and volume of expungements at that particular time.

As one can glean from this primer on the topic, expungements have a lot of working parts and can be difficult at times. Though legal counsel is not necessary, it is advisable to seek assistance from an attorney who has a strong knowledge of how expungements work and how to best make them work. Remember that like any service industry, we take care of this stuff for you so that you don’t have to.

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