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What Are the Expungement Eligibility Laws in Virginia?

Expungements in Virginia are not for everyone who has been charged with a criminal offense. 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.

Expungements in Virginia 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. 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.)

The eligibility criteria is as follows:

  1. A person is eligible for an expungement if charged with a criminal offense or any offense under Title 18.2. AND
  2. An order of nolle prosequi, a finding of not guilty, or a dismissal disposes of the case.
  3. Moreover, dismissal includes a dismissal pursuant to an accord and satisfaction pursuant to Va. Code § 19.2-151.

Standard Expungement Application & How to File

The Court will apply the following standard of review in deciding whether to grant an expungement:

  • 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.

Filing for an expungement 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: (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 is 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 will be returned to you.

Identity Theft Expungement

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 us today!

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