How to get a Virginia Criminal Charge expunged: FAQ’s

If you’ve found this page, it’s more than likely because you or someone you know has one or more criminal offenses that would show up if anyone did a background check. Everyone knows employers, lenders, landlords, schools, and governmental officials pull criminal records when making decisions about people. A criminal record can and will shut down access to many of the finest things in life, either temporarily or permanently.

If you qualify, there is a process that can help clean up your criminal record. This process is called “expungement” and can result in criminal records being removed from databases that are used to do background checks.

However, the expungement process does have limits. Virginia law does not allow for the expungement of convictions. Only arrests that did not lead to a conviction are eligible for expungement. Further, determining whether your particular arrest record qualifies for expungement can be difficult, and the process itself is technical and specific. You will almost certainly want the assistance of an experienced attorney.

You also need to know that expungement is not a version of the “clean slate” software Selena Kyle was looking for in “The Dark Knight Rises” – it won’t result in a complete elimination of the expunged arrests from official databases. Expungement only means that the expunged arrests will be restricted from public view. With very few exceptions, people with a sufficiently good reason to look at your expunged records, will still have access to them. Prosecutors, for example, can take prior arrests into account when formulating charges for an offense, even if those prior arrests have been the subject of a successful expungement.

You should also remember that in this Age of the Internet, data is perhaps the most valuable commercial commodity in the world. Thousands of companies exist solely to compile and sell personal data to willing and eager buyers. If any of your data has been gathered from the past, and sold (or re-sold) by data brokers, it will be impossible to put that toothpaste back in the tube. In fact, few private companies who perform criminal background checks use data from the original, official sources. Even if a court orders the expungement of your records, the information contained in those records may pop up in any background check performed using data compiled before the expungement.

 

What exactly is “expungement”?

Expungement is a process that can remove certain entries on your record from public view.

Virginia law allows people who were charged with a crime, under certain conditions, to have their records hidden from public view. Having your criminal record expunged essentially means the information associated with your arrest will be treated as “confidential”. Records that have been expunged are not visible to landlords, bankers, or most employers. If you have your records expunged, you will be able to state legally that the offense never occurred and that the record does not exist.

Having your records expunged is not the same thing as having those records permanently destroyed. If you are successful in having your records expunged, they will be removed from public view. This means they can only be seen if a court issues an order giving permission to someone who is then allowed to view them. For example, a law enforcement officer might be granted permission to see the records after convincing a judge the records are relevant to some investigation.

 

What cannot be expunged from my criminal record?

Please note expungement is not available on charges for which you were convicted. If you were found guilty of a particular crime, you cannot have that charge expunged, even if you did not serve time or pay a fine.

Even if you were not actually convicted on the charges the Commonwealth brought against you, you might not be eligible to have your arrest records expunged. You must prove that you are eligible to take advantage of the expungement process. Determining whether you’ll be eligible to have your arrest record expunged can be complicated. This is the number one reason you should consider getting professional help in your efforts.

 

Okay, then, what exactly can be expunged from my record?

Basically, there are six categories of people who have arrest records that can be expunged. 

1. Any person charged with a crime who pleads “not guilty” to the charges and is acquitted after an actual trial before either a judge or a jury. This requirement is more complicated than it might appear. If you were convicted of another charge that was a “lesser included offense” of the original charge, you would not be eligible for an expungement. For example, if you were originally charged with a felony, and were not found guilty, but you were convicted of a misdemeanor form of the charge, you would not qualify for expungement of the original charge.

2.  Any person who was involved in a civil lawsuit and was charged with contempt of court related to that lawsuit, but is later found not guilty of contempt, may be able to have the contempt charge expunged.

3.  Any person brought up on charges that the Commonwealth Attorney’s office (CA) decides not to prosecute (a “nolle prosequi” decision). This is commonly referred to as “dropping the charges”, but this phrase is a little misleading since it could imply other decisions being made by the prosecution’s attorneys. Practically speaking, if you received a “deferred finding” of any kind, you will not be able to obtain an expungement.

4.  Any person charged with an offense for which that person could also be civilly liable to the victim, if both (a) the victim states in writing he or she has received satisfactory compensation for the injury involved in the charge, and (b) the case against the defendant is in fact dismissed.

5.  Any person whose name or personal identification has been used without the person’s consent or authorization in an activity that leads to a criminal charge. Basically, if you were charged as a result of identity theft, you could be eligible for expungement. 

6.  Any person who was convicted of a crime who later receives an absolute pardon.

For most people in the above categories, it can be difficult to determine eligibility for expungement. Many arrests take place under confusing circumstances, and CA’s frequently play with charges to maximize their advantage. You should seriously consider hiring a qualified attorney to help you determine whether you are eligible to have your arrest records expunged.

 

What does the expungement process involve?

Expungement is a complicated process and involves a separate legal action. It’s not part of your original criminal case. You are required to file a civil suit against the Commonwealth of Virginia, in a Circuit Court, in the jurisdiction in which your original criminal charges were filed. 

 

How do I file for an expungement?

Applying for an expungement requires you to file a completed “Petition for Expungement Filed in a Circuit Court – Acquittal/Dismissal” in the appropriate court (“the Petition”). You’ll also need to pay fees and costs for the filing of the Petition. Some jurisdictions also require you to file a “Cover Sheet for Filing Civil Actions.” Both this document and the Petition can be found on the Virginia Courts website.

The Petition must contain specific information, including the case number, addresses, your full name, your birthdate, the name and the number of the charges you’re trying to have expunged, a description of the charge and how it was disposed by the original court, a copy of the original arrest warrant and/or the original indictment, the underlying case number, the name of the arresting agency, the date of the final disposition of the original charge, and the name of the court that disposed of it. The Petition must also include very specific language prescribed by Virginia authorities. 

 

What else do I have to do to start the process?

Besides filing the Petition in the appropriate court, you must serve a copy on the CA in the county or city in which you filed the expungement suit. The CA then has three weeks to respond to your Petition. You also must provide a copy of the Petition to a law enforcement agency in Virginia which must also take fingerprints. That agency then submits your prints and the copy of the Petition to the Central Criminal Records Exchange (CCRE), who will use the Petition and the prints to look through records for any other evidence of your criminal history.

 

What happens after I file the Petition and serve these copies?

After the CCRE creates a report, it will forward your fingerprints and report to the Court in which you filed the Petition. As said before, the CA has three weeks to answer your Petition.  If The CA does not answer your Petition within that time, the judge assigned to review your Petition can make a decision. If the CA does in fact file a response, then the Court will schedule a hearing on your Petition.

 

What happens if there’s a hearing on my expungement Petition?

At your hearing, the CA can oppose your petition and present evidence showing your charges should not be expunged. If this happens, you can respond and rebut any evidence the CA introduces against your expungement.

You do have the right to file the Petition and argue your case without an attorney, but you will be expected to understand how courts deal with evidence, with procedures, and with the overall process of conducting a hearing. Judges are not allowed to give you any legal advice about your case, or to ignore basic rules of evidence or procedure.

You will be required to persuade the judge that the Commonwealth can and should expunge the charges against you. The CA doesn’t need to prove your charges shouldn’t be expunged, but you should expect resistance from the CA. If you are attempting to have a felony charge expunged, or if you have multiple charges, you also must demonstrate that not expunging the records will be a “manifest injustice” to you. Meeting this standard requires you to prove to the judge’s satisfaction how keeping your arrest information public would be unfair to you under the circumstances.

 It’s easier to get an expungement if you have only one misdemeanor charge against you. If you were originally charged with a misdemeanor and have no other criminal record, the CA bears the burden of proving that your Petition should be denied.

 

What happens if I am successful at the hearing?  

If the judge grants your Petition and orders your records to be expunged, the appropriate Virginia agencies will begin the process of removing your records from public view. This could take several weeks or even months to complete. The judge’s staff will return your expungement file to the clerk’s office, and you should stop by the clerk’s office later that day, or perhaps the next day, to get a copy of the expungement order signed by the judge. Once the file is sealed you won’t be able to get a copy.

The clerk of the Circuit Court will process the expungement order, and will forward an order to the court where the case was originally brought requiring your records to be sealed. The same order will also go to the Department of Criminal Justice Services in Richmond, and they will seal the state criminal records. The State Police might send a letter to you once the records are sealed confirming that the expungement has taken place. Eventually, even national crime records kept by the FBI will be updated to reflect the expungement.

 

What happens if I am not successful?

If the judge denies your Petition, you do have the option to appeal that decision to the Virginia Supreme Court. If your appeal fails also, having your records removed from public view becomes very difficult indeed. It would require filing a request for a full pardon from the Governor of Virginia. 

 

If my criminal record is expunged, do I ever have to admit that I have a prior arrest or conviction?

After your records are expunged, you may truthfully say that you were never charged on the records that were expunged. In the eyes of Virginia law, the arrest and charge never happened.

 

If my expungement is granted, will the police still have access to my criminal record?

Yes. If you are successful in having your records expunged, they will be removed from public view, meaning they can only be seen if a court issues an order giving its permission to someone who is then allowed to view them. Law enforcement officers could be granted permission to see the records after convincing a judge that the records are relevant to some investigation.

 

Are there any court filing or administrative fees?

Yes. There are filing fees associated with the filing of a Petition, and there are costs involved in serving the Petition on various offices.

 

How long does it take to expunge or seal my criminal record?

The expungement process itself is rather complicated and can be time-consuming. Even if your Petition is successful, it can take months for the results to filter through the criminal justice system.

 

Am I certain to get an expungement?

No. It is impossible to guarantee the outcome of the expungement process. 

Charles V. Hardenbergh
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