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.

Arlington County General District Court Arraignment

Every jurisdiction throughout the Commonwealth of Virginia has its own little peculiarities. As an attorney who has practiced in numerous of the several judicial circuits, I am familiar with many of them.

One such peculiarity exists when it comes to charges in the Arlington County General District Court. Arlington, as with some jurisdictions, has not done away with the practice of having a formal arraignment for persons subject to a criminal charge in the General District Court. Courts keep this practice for several reasons, the principle one being that it allows the Court to maintain added control over their schedules. Likewise, when someone is issued a warrant or summons to appear for a criminal charge in Arlington County General District Court, they given a date to appear for an arraignment.

Now before I say more, it is important to note that the court date provided to a defendant is not always an arraignment date. On traffic tickets for example, the date provided is usually an actual trial date. One can usually assume that if the time listed on the paperwork is other than 2:00pm and if the defendant is not in custody, then that court date is NOT an arraignment. The best way to confirm this is to phone the clerk's office to verify the nature of the court appearance. Their number is 703-228-7900.

Very often, I encounter potential clients who are frantic because the notice that the court date listed on their paperwork is mere days away from the date they were arrested. I cannot describe the sigh of relief that comes over them when I explain that this is an arraignment. Yet, even more of a relief occurs when I explain that they do not need to appear on this court date if they have hired an attorney.

In the Arlington County General District Court, if a defendant has hired an attorney (and if that attorney is aware of local practice), then the defendant does not need to appear in court for arraignment. What happens is relatively simple. Once the attorney is hired by the defendant, the attorney may avoid having his client appear and having to appear himself by visiting the clerk's office and entering his appearance of counsel. The attorney should note on the appearance of counsel that he wishes to waive arraignment and set the matter for trial/preliminary hearing. The clerk's office is very helpful in providing suitable court dates, which are dictated by the officer's assigned dates and the court's docket vacancies. I would further recommend that the attorney entering his appearance note the name of the arresting officer on their appearance as well in order to assist the clerk's office. The officer's badge number would also be helpful.

Once an attorney has taken these measures on behalf of his client, neither he nor the client needs to appear for the arraignment. That attorney should check the Virginia Court's website after 3:00pm on the date of the arraignment in order to verify that the Court has approved the trial or preliminary hearing date the attorney selected. Failing to do so, could result in the Court selecting another date and a litany of potential problems for both counsel and client.

If a defendant has not hired an attorney prior to the date of his arraignment, then there is still no need to panic. The defendant should simply appear at arraignment at the designated date and time. There, the judge will simply advise the defendant of the charges against him and ask if he wishes to seek his own counsel or apply for court-appointed counsel. If the defendant applies and qualifies for count-appointed counsel, then the judge will appoint an attorney to represent him and provide contact information. If the defendant wishes to seek to hire private counsel on his own, then the judge will set a trial date, preceded by a "review date." This review date is a deadline for the defendant to acquire an attorney. If he does not have an attorney by this date, he is required to appear before the judge again. If he fails to appear at this review date, he may be deemed to have waived his right to counsel. UNDER NO CIRCUMSTANCES SHOULD THE DEFENDANT TRY TO ADDRESS THE FACTS OF HIS CASE ON THE ARRAIGNMENT OR REVIEW DATE. Anything that is said by the defendant on these dates can be used against him, so there should be no mention of the merits of the case at that time.

In short, the best thing to do when you are facing a criminal charge in Arlington County General District Court is to seek out and hire a qualified criminal defense attorney who understands the particulars of the jurisdiction as soon as possible. Doing so can spare you extra court appearances, time, and stress in the long run.

The Myth Behind Miranda Warnings

Too often I encounter clients and other citizens who have a misconception regarding the protections under "Miranda doctrine" and the subsequent effects during their interactions with law enforcement. In an effort to dispel any misunderstandings surrounding this doctrine and what it means to be "read your rights," I offer the following explanation and background.

An Officer's Failure to Advise a Suspect of His/Her Miranda Rights Does NOT Invalidate an Arrest
The most common issue I have faced surrounding Miranda Warnings when sitting down with a client is the mistaken belief that an officer's failure to read an arrestee these rights somehow invalidates the arrest. This is simply untrue. A law enforcement officer needs only probable cause in order to validate an arrest of a suspect. An officer does not necessarily need to advise a suspect or arrestee of his/her Miranda rights in order to proceed with or maintain a valid arrest.


If the Officer is not Required to Advise a Suspect of Miranda Rights, Then Why Do Officer's Do It?
A Miranda Warnings advisement occurs in order to inform a suspect of his rights under the Fifth Amendment and Sixth Amendment. Specifically, the officer is advising the suspect of his right to remain silent, that anything he says can be used against him,  that he has the right to legal counsel, and that if he cannot afford legal counsel, one will be provided.

As an historic backdrop, prior to the Miranda decision, various law enforcement agencies were developing and implementing training techniques in order to procure confessions from suspects. Suspects who were under interrogation and unaware of their right to remain silent and have an attorney were providing confessions abundantly in the face of these tactics. The Miranda decision states that when a person is in the custody of a police officer and is subject to interrogation, he should be made aware of his rights to remain silent and his right to counsel in order to preserve his ability to invoke his Fifth and Sixth Amendment rights.


How Does the Advisement  of These Rights (or the Absence Thereof) Help a Criminal Defendant?
Generally, any evidence procured by law enforcement in contravention of a person's constitutional rights may not be used in a criminal proceeding. In the context of Miranda Warnings, if a person makes an incriminating statement in response to law enforcement interrogation while he is in the custody of law enforcement and without having been advised of these rights, then that statement may be excluded from a criminal proceeding.

This Does NOT Mean that Everything You Say Can be Suppressed
The principles surrounding Miranda doctrine are founded in the Fifth Amendment privilege against self incrimination. However, the absence of an advisement does not suppress everything you say necessarily. The doctrine only applies to times of "custodial interrogation." Interrogation has been defined as questioning by law enforcement or its functional equivalent. In other words, interrogation encompasses direct questioning as well as statements and actions made by law enforcement to a suspect that are designed to elicit an incriminating response. Thus, a broad spectrum of interaction could be deemed "interrogation" for these purposes.

Custody is a much hairier topic. The rudimentary definition of "custody" for these purposes is a formal arrest or restraint on freedom of movement. This means that a person may be in custody without being formally arrested. However, when a person is not arrested, the question over custody directs us that the general rule is that there is no general rule. Courts look at all of the facts and circumstances and rely upon how the situation is viewed from the vantage point of a reasonable person in the suspect's position. Circumstances such as location, how many officers are present, how the suspect came to be in that situation, etc. may be considered in determining whether or not a person is in custody for these purposes.

Conclusion
Now that you know the basic framework behind Miranda Warnings, it is up to you to use this knowledge to protect yourself. The absence of a Miranda advisement does NOT invalidate an otherwise valid arrest, so do not assume it can be used in this way. Rather, remember that it protects you from the things you say when in the custody of law enforcement. The safest thing would be to invoke the right to remain silent and not say anything from the onset. Many might say that the custody element is too fluid to risk that a judge will agree with you that you had no freedom to terminate the encounter. Whatever you decide to do, remember that law enforcement officers have a difficult job. Asserting your rights does not mean you should be rude or disrespectful about it. Simply and politely state that you do not feel comfortable speaking with law enforcement without an attorney present. Be polite, be cooperative, but be smart and use what is available to you to protect your rights.