NEW VIRGINIA EXPUNGEMENT LAWS
Want to clean up your record? Call us to help you navigate expungement. An expungement is a process whereby we can petition the court to remove arrests and dismissed charges from your record. ***The records are not destroyed and are still visible if the judge gives permission (for example, to a law enforcement officer). However, they are removed from public view, so that they will not show up on background checks.***
WHAT KIND OF RECORDS ARE ELIGIBLE FOR EXPUNGEMENT?
Up until July 1, 2021, only criminal charges that were dismissed or for which the disposition was not guilty were eligible for expungement. If you were arrested, but were ultimately not convicted, the arrest and the charge will still show up on your criminal background check and you can petition the court to have these records removed. This law is still in effect and can be used to expunge the following types of dispositions:
- Dismissals with prejudice
- Dismissals without prejudice (nolle prosequi)
- Dismissals by accord and satisfaction
- Not guilty findings
- Arrests that did not lead to a conviction
- Charges for which you later receive an absolute pardon
- Charges on your record which were a case of mistaken identity or identity fraud
- Certain juvenile convictions
Beginning on July 1, 2021*, several new categories of offenses are eligible to be sealed from public view or background checks. Under Virginia's new expungement laws, you can petition to “seal” low-grade felony convictions (class 5 or 6), misdemeanor convictions, and dismissals pursuant to a deferral in a first-offender program, e.g., a first-time marijuana charge. You may also petition to seal convictions for grand larceny (including those offenses punishable as grand larceny), which is an unclassified offense. To be eligible to petition to seal a conviction, you must meet the following requirements:
(1) You have never been convicted of a class 1 or class 2 felony;
(2) You have not been convicted of a class 3 or class 4 felony in the last 20 years; and
(3) You have not been convicted of any other felony within the past 10 years.
Finally, you may only petition to seal convictions, or dismissals pursuant deferral, a total of twice in your lifetime. If you previously had two petitions granted under the new expungement laws, you are not eligible. To grant your petition to seal a conviction or dismissal pursuant to deferral, the Court will have to make the following findings in your case:
(1) For a misdemeanor offense, you have had no convictions in Virginia or any state or territory for seven (7) years, or for a felony offense, you have had no such convictions for ten (10) years;
(2) If your conviction involved drugs or alcohol, you must demonstrate rehabilitation;
(3) You have not previously been granted the sealing of two convictions or dismissals pursuant to deferral; and
(4) The continued existence and possible dissemination of information relating to the charge or conviction causes or may cause circumstances that constitute a manifest injustice to the petitioner.
*The new statute has a provision delaying its effective date until 2025 at the latest, and perhaps sooner under certain conditions.
RECORDS NOT ELIGIBLE FOR EXPUNGEMENT UNDER NEW LAWS:
- Class 1, 2, 3, or 4 Felonies
- Vehicular Involuntary Manslaughter and Maiming
- Watercraft Involuntary Manslaughter and Maiming
- Assault & Battery of a Family Member (Domestic Assault)
- Driving While Intoxicated or Driving Under the Influence
HOW EXPUNGEMENTS WORK
To have your record expunged, a petition must be filed in the Circuit Court of the jurisdiction where you were originally charged. You will need to be fingerprinted, and there is a waiting period. During that waiting period, the Commonwealth's Attorney receives a copy of the petition, and has an opportunity to object. Your fingerprints are sent to the CCRE (Central Criminal Records Exchange in Virginia) and your record is pulled. Then, the petition is scheduled for a hearing.
At the hearing, you and your attorney must demonstrate good cause as to why you deserve to have your record expunged. Examples are difficulty gaining or keeping employment and damage to your reputation. Additionally, in some cases, you have to demonstrate rehabilitation. If you have a clean record, and the expunged record was a misdemeanor, it is generally easier to convince the judge to grant your expungement. If you have several convictions and arrests on your record, or are seeking to have a felony record removed, it can be more difficult.
The Commonwealth may object to the record being expunged for several reasons, and an experienced attorney will consult with them beforehand to prepare counterarguments. As experienced Virginia criminal defense lawyers, Carmichael Ellis & Brock is well-versed in expungement procedures and ready to champion your rights and allow you to move on with your life.
In additional to making the process painless and rewarding for clients, we also counsel them about a separate process - cleaning your record on the internet. Although your record may be removed from public view in the jurisdiction in which we file your petition, there are hundreds of websites which exist to catalog and store information about your criminal background. Therefore, it is imperative that my clients take this additional step to fully clean their record.
Please contact us today to set up an initial consultation.
GETTING A COPY OF YOUR VIRGINIA CRIMINAL RECORD
To obtain your criminal record, you will have to complete a “Criminal History Records Check” application form. This application is available at your local police department and/or by contacting the Virginia State Police department. You can also complete the application via the internet here.
To obtain your criminal record, you must send your application to:
Virginia State Police
Civil & Applicant Records Exchange (CARE)
Virginia State Police
P.O. Box 85076
Richmond, VA 23285
There are fees involved for obtaining your criminal record, depending on the type of background check you request. Also, these fees are subject to change. If you are requesting your criminal record by mail, please allow time for them to process your request.
RELEVANT CODE SECTIONS
Code of Virginia § 19.2-392.2 - Expungement of police and court records.
Code of Virginia § 19.2-392.12 - Sealing of offenses resulting in a deferred and dismissed disposition or conviction by petition.