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What Are the Expungement Eligibility Laws in Virginia?
Expungements are not for everyone who has been charged with a criminal offense in Virginia. However, they are available in limited circumstances. The existence of criminal charges on your record can have detrimental implications on employment, housing, and other social programs. Clearing your record of these arrests through an expungement is your only recourse. In Virginia, convictions are forever; however, Virginia’s expungement law offers relief for those charged but never convicted.
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What Is Expungement?
Expungements will erase an arrest record in any case resulting in a finding of not guilty or a dismissal. Expungements are a statutory remedy under Virginia Code § 19.2-392.2. Moreover, when a judge grants the petition, the order serves to erase all public information about the arrest.
The Eligibility Criteria Is as Follows:
- A person is eligible for an expungement if charged with a criminal offense or any offense under Title 18.2. AND
- An order of nolle prosequi, a finding of not guilty, or a dismissal disposes of the case.
- Moreover, dismissal includes a dismissal pursuant to an accord and satisfaction pursuant to Va. Code § 19.2-151.
However, the appellate courts in Virginia have stated that expungements are only available when there is actual innocence. To this end, first offender dispositions are ineligible. (i.e.§ 18.2-251; § 19.2-303.2, etc.)
How to Get Your Record Expunged
Filing for an expungement in Manassas is fairly simple. You will need a copy of the petition (state form) along with a certified copy of the warrant or indictment. These are submitted to the Circuit Court of the city or county where the initial case was resolved.
The Petition Shall Contain the Following:
- The date of arrest and he name of the arresting agency. If this information is not available, the petition shall state the reason for such unavailability.
- The specific criminal charge to be expunged
- The date of final disposition of the charge as set forth in the petition
- The petitioner’s date of birth
- The full name used by the petitioner at the time of arrest
What Is Included in the Standard of Review?
The Virginia court system will then apply the following standards of review in deciding whether to grant an expungement.
This Will Include:
- Felony Offenses or Misdemeanors with Prior Record. The continued existence may cause circumstances that constitute a manifest injustice
- No prior criminal record and arrest for a misdemeanor. The Commonwealth must show good cause against the granting of the expungement.
Obtaining Fingerprinting for the Petition
The petition is served to 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.
How to Obtain Your Fingerprints:
- 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 will be returned to you.
Can a Felony Be Expunged in Virginia?
In Virginia, records that were dismissed or found not guilty prior to July 1, 2021 were eligible for expungement. The court could expunge your records if you were arrested and charged with a crime, but not convicted:
- A dismissal with or without prejudice (also called a “nolle prosequi ”)
- Accords and satisfaction-based dismissals
- Verdicts of not guilty
- Arrests that did not result in a conviction
- Fraudulent or mistaken identity-related charges
- Certain juvenile crime convictions
Expungements in Virginia will also allow you to seal low-grade felony convictions, dismissal deferrals, and misdemeanor convictions starting in 2024. Following are the eligibility requirements for filing an expungement petition:
- No prior convictions for class 1 or class 2 felonies
- No convictions for class 3 or class 4 felonies within the last 20 years
- Within the last ten years, I have not been convicted of any other felony crimes
There are, however, some criminal conviction records that cannot be expunged:
- Felonies in classes 1, 2, 3, or 4
- Manslaughter or maiming by vehicle or watercraft involuntarily
- A family member has been assaulted and battered
- DWIs or DUIs are driving while intoxicated.
Can Misdemeanors Be Expunged in Virginia?
Yes, some misdemeanors can be expunged in Virginia. Virginia law allows for certain misdemeanor convictions to be expunged from a person's criminal record under certain circumstances.
To be eligible for expungement in Virginia, the misdemeanor charge must meet the following criteria:
- The charge must not be a traffic offense;
- The charge must not be a violation of a protective order;
- The charge must not involve any act of violence, including domestic violence;
- The charge must not be a drug-related offense that is punishable by more than one year in jail; and
- The charge must not be a Class 1 misdemeanor.
If the misdemeanor charge meets the above criteria, the individual may be eligible to petition the court for expungement. They must wait until the expiration of either two years from the date of the offense or the individual's release from any incarceration or probation, whichever is later.
It's important to note that expungement is not an automatic process, and it requires filing a petition with the court and attending a hearing. An experienced Manassas expungement attorney can help guide someone through the process and determine if they are eligible for expungement.
Can Identity Theft Be Expunged?
If you are the victim of identity theft, you may have any arrests related to this theft expunged. To do so, file the petition with the Court that disposes of the charge. Furthermore, filing fees is not required.
While many people think applying for an expungement is easy, an experienced criminal defense attorney should assist you with the process. Contact a Manassas expungement attorney from our firm today!
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