Expungements in Virginia
Why Should You Consider an Expungement?
Any person who maintains a position of innocence throughout litigation may still have negative consequences for having any criminal record. §19.2-392.1 of the Code of Virginia states that the purpose of an expungement is to alleviate the potential hindrance an arrest record can have on an innocent citizen’s ability to obtain employment, an education and to obtain credit. Additionally, undue weight could be given to having previously been charged with a crime if a person later gets charged with another criminal offense.
If you are interested in discussing options for obtaining an expungement, please do not hesitate to contact Naum Estevez, PLLC.
Nicole Naum presented a Continuing Legal Education on Expungements in February 2015 to the Prince William Bar Association. Naum Estevez, PLLC is prepared to fully explore any and all options for expungement.
Who Can Obtain an Expungement?
To qualify for an expungement, you must have maintained the status of “innocence” for the charge you are seeking to expunge. To occupy the status of innocence, you cannot have pleaded guilty to the charge you are trying to expunge. Examples of permissible pleas include:
• If a person receives a General Continuance without entering a plea they maintain innocence;
• Not Guilty plea;
• No plea and disposed of by Commonwealth motion for nolle prosequi (“nol pros”)
• No plea and dismissed pursuant to §19.2-151, Accord and Satisfaction
• Guilty to a separate and distinct charge; not a lesser and included charge. Dressner v. Commonwealth, 285 Va. 1 (2013).
If a person pleaded guilty or nolo contendere then the person asserted that they are not innocent and therefore not able to obtain an expungement. The court would also need to find, or act in accordance with, sufficient of the evidence consistent with guilt. Bindra v. Commonwealth, 51 Va. Cir. 28 (1999); Commonwealth v. Dotson, 276 Va. 278 (2008); Necaise v. Commonwealth, 281 Va. 666 (2011). Under this proposition, deferred findings after a guilty plea (Starrs or an SIS) or dismissals after a completed §18.2-251 would NOT be expungeable. Galdo v. Commonwealth, 43 Va. Cir. 213 (1997).
After looking at the plea to the charge, you must then look at the outcome. The person must maintain his or her innocence legally to be eligible for expungement. An acquittal, nol pros, dismissal pursuant to an accord and satisfaction, or a charge that is “otherwise dismissed” is expungable. An example of “Otherwise dismissed” is the situation where the person is found guilty of a non-lesser included offense than the charge sought to be expunged. Dressner v. Commonwealth, 285 Va. 1 (2013). See also MacDonald v. Commonwealth, 83 Va. Cir. 485 (2011). While not mentioned in case law, a granting of a Motion to Strike results in a dismissal and would also be “otherwise dismissed”. Additionally, a finding of guilty but later absolutely pardoned is expungable.
If the Charge is Expungeable, Must the Court Grant the Request?
Maybe. If a person has no prior conviction record and the charge sought to be expunged is a misdemeanor, the court shall order the expungement of the charge and relating documents unless the Commonwealth can show good cause as to why it should not be expunged. Most cases in which the charge sought to be expunged is a misdemeanor and the person has no criminal record, the Expungement will be granted.
However, if a person has a prior conviction record and/or the charge sought to be expunged is a felony, the burden is on the person to show "the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner." Proof of manifest injustice includes testimony of potential lost opportunities for work, education or financials.
What is the Process for Obtaining an Expungement?
You can expect that your attorney will prepare a petition for you can file with it the Civil Circuit Court of the Country in which the charge originated from. You will need to pay a filing fee to have this matter addressed by the court. You can expect that filing fee to be around $100.00. You will receive a copy of the filed petition and your attorney will have you obtain fingerprints. These fingerprints will be returned to you if the expungement the expungement is granted. There will be a hearing in which your attorney will advise you as to whether or not you must appear. If the court grants your petition, the State Police will be notified that the court ordered that the records relating to your arrest be destroyed. It could take several months for the State Police to complete this task but once it has occurred, the record of your arrest will be removed and only in very rare and isolated instances will anyone be able to access this information again.
If you are interested in discussing options for obtaining an expungement, please do not hesitate to contact Naum Estevez, PLLC. Nicole Naum recently presented a Continuing Legal Education on Expungements in February 2015 to the Prince William Bar Association. Naum Estevez, PLLC is prepared to fully explore any and all options for expungement. We look forward to discussing your case with you.