Virginia Expungements are governed by Virginia Code § 19.2-392.2. An expungement completely erases the arrest record for the petitioner; thus, resulting in no information being publicly available regarding this arrest. Expungements are only available for offenses where there is actual innocence. This principle supports the reasoning why the state legislature only permits expungements for limited circumstances. It also supports the reason why an expungement is not an available remedy for people who got a charge dismissed under a first offender statute (i.e. § 18.2-251; § 19.2-303.2, etc.).
- In Virginia, a person is eligible for an expungement if they were charged with a criminal offense or any offense under Title 18.2. AND
- They charge was disposed by an order of nolle prosequi, the person was found not guilty, or the charge was dismissed.
Dismissal includes a dismissal pursuant to an accord and satisfaction pursuant to § 19.2-151 of the Code of Virginia. What’s important for a person seeking an expungement to understand is that they are not eligible for an expungement if their case was deferred for dismissal pursuant to a plea of guilty or a judge finding facts sufficient for a finding of guilt. The logic behind this is that if there is a guilty plea of the judge feels the facts would result in a finding of guilt but for defers that finding, a person is not “actually innocent” and not eligible for relief.
The Court will apply the following standard of review in deciding whether to grant an expungement.
- All Felony Offenses or Misdemeanors with Prior Record: The court must find that 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.
- No prior criminal record and arrest for a misdemeanor: Expungement of right where the Commonwealth must show good cause why the petition should not be granted.
Identity Theft Expungement
If you had your name or other identification information stolen from you and used by another person who incurred a criminal record under your name, you are eligible to file for an expungement in Virginia. You must file in the court that disposed of the charge and you will not be required to pay the fees for filing for this relief.
How to File:
In order to file for a Virginia Expungement, a petition along with a certified copy of the warrant or indictment shall be filed in the Circuit Court of the city or county where the case was disposed. The petition shall contain the following: (1) the date of arrest and (2) the name of the arresting agency. If this information is not available, the petition shall state the reason for such unavailability. In addition to the foregoing, the petition must also state the (3) specific criminal charge to be expunged, (4) the date of final disposition of the charge as set forth in the petition, (5) the petitioner’s date of birth, and the (6) full name used by the petitioner at the time of arrest.
The petition must be served on the Commonwealth Attorney for the County or City where the petition is filed and they have 21 days to respond to the petition. After filing and arranging for service of the petition for expungement, the petitioner must obtain one complete set of fingerprints from a law enforcement agency. You must provide the agency doing the fingerprinting with a copy of the petition. The law enforcement agency will submit the fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement. The CCRE will then forward a copy of the petitioner’s criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, and the set of fingerprints to the Court. At the conclusion of the case, the fingerprints are returned to you.
While many people think applying for an expungement is an easy process, an experienced criminal defense attorney should be consulted to assist you with the process.