New Virginia Expungement Case:
A recent expungement case out of Virginia has the potential to pave the way for defense attorneys who are willing to be bold and use the ruling to help clients who have struggled with an embarrassing criminal arrest on their record, perhaps one that was previously thought to be the type that could not be expunged.
I talk to many people each and every week who tell me a criminal arrest record is holding them back in life.
Dear Virginia Expungement Attorney
Can I expunge my record if I plead guilty?
The rules in Virginia are clear when it comes to whether or not someone can expunge a criminal arrest record that resulted in a finding of guilt for that charge — be it by judge or plea agreement. On the other hand, a not guilty verdict or a dropped charge (and cases otherwise dismissed, with some exceptions) qualify.
The tricky situation that has been unresolved until recently:
what if, as part of a negotiated plea agreement, a defendant pleads guilty to an amended charge. Can they expunge the original arrest record of the charge that was amended to something else?
Until the Supreme Court (in Virginia) weighed in, the answer was not clear. The Fairfax Circuit Court answered the question in the negative, but after getting overruled, we know that an amended charge can still be expunged. Now, what is an mended charge, you ask?
Like many Northern Virginia and Fairfax criminal attorneys, our office receives several calls every week from people who want to know whether or not they can expunge a Virginia arrest record. Expungement is a civil process to seal an arrest record from public view.
Most of the time, I have to tell callers they do not qualify under current Virginia law. The straight-forward general rule is as follows:
If you were found guilty, or if you plead guilty, then you do not qualify for expungement.
But in practice, not every case is so simple.
Most people calling about an expungement fall into one of these categories:
- related to a case not yet finalized [Cannot expunge];
- related to a charge resolved, not in their favor [Depends. Usually cannot expunge];
- related to a dismissed charge, after compliance with a program (first offender) [Cannot expunge];
- related to a past case, and either found not guilty or charge dropped (nolle prosequi) [Qualifies]; or
- of a charge later amended prior to the hearing. [Qualifies, but read cases referenced on this page]
This post sheds light on the scenario highlighted above in red.
What if – as is often the case when a defense attorney works out an agreement with a prosecutor prior to a hearing – the charge is amended, and the defendant pleads guilty to a charge that is not related (and not considered a lesser-included offense) to the original charge?
If you were to have asked a handful of Virginia criminal lawyers the above question prior to 2013, you would probably have received an assortment of answers.
An individual is charged with a crime, but before the hearing, it is amended to a different charge. For example, a possession of marijuana charge amended to reckless driving.
The case is Dressner v. Commonwealth1
The defendant pled guilty to reckless driving. Sometime later, this individual lost her job after a background check revealed the charge of marijuana possession.
She subsequently petitioned the Circuit Court to expunge the possession of marijuana arrest record, but the court denied the motion. On appeal, the Supreme Court ruled reversed the judgment of the Fairfax County Circuit Court, and remanded for entry of expungement.
Virginia Expungement Attorney Summary:
- First, the elements of the offense of reckless driving are not included within the legal elements of a possession of marijuana charge.
- Second, the petitioner lost their job after a background check revealed the charge. Thus, it constituted a manifest injustice.
What this means:
This means that if you were arrested or charged with an offense, but as a result of a plea agreement with the Commonwealth, you pled guilty to a different offense, you may be able to expunge the original record of the charge. Ask our Northern Virginia defense attorney and Fairfax criminal lawyer if you would like a free consultation and case analysis.
There is another case, Necaise v. Commonwealth2
In that case, the defendant pled guilty to reduced charges (misdemeanors reduced from felonies), and as part of the agreement, additional misdemeanor charges were dropped (nolle prosequi). The individual later sought to expunge all of the charges, and the Circuit Court held that the Virginia Expungement law 3 disallowed the original felony charges to be expunged. The lesser-included misdemeanor offenses could not be expunged, but the charges disposed by nolle prosequi disposition could. The Supreme Court of Virginia affirmed this on appeal.
We serve all of Northern Virginia, and if you have a question about expungement, the legal fees, or anything else, please give us a call and a Fairfax criminal lawyer will be happy to take, or return your phone call:
For more about the basics and overview of the Virginia expungement process, see our Virginia Expungement information page and the posts and articles referenced on that page.
We need to take a look at our laws, and evaluate the economic factors weighing in favor of loosening expugement laws and qualification standards.
If you have not yet had your court date, learn more about your charge by visiting:
Assault in Virginia (Domestic Assault and Misdemeanor Simple Assault)
Trespassing Laws in Virginia explained by a Northern Virginia Defense Attorney
More criminal charges – click here
More traffic-related criminal charges (no license; suspended, revoked, etc.)
 Dressner v. Commonwealth, 285 Va. 1; 736 S.E. 2d 735; 2013 LEXIS 9; 2013 WL 119757
 Necaise v. Commonwealth, 281 Va. 666; 708 S.E.2d 864; 2011 Va. LEXIS 86
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