Virginia Expungement – Explained by Our Fairfax Criminal Lawyer
If you have been charged and/or arrested in the past, then you should be concerned with the information that may be publicly available for the world to see. One common question we often are asked is, whether or not anything can be done to prevent future or current employers from viewing one’s criminal record. Maybe you are familiar with the Virginia General District Court Case Information System (we recommend running a search on your own name to see what is public). The good news is, yes, you can do something…maybe. The expungement process is generally only available if the criminal charge did not result in a guilty verdict of any kind. There are some exceptions, which are covered on this page.
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What does Expungement Mean?
Should I Consider an Expungement?
Don’t Miss: Special 2-Part Virginia Expungement Infographic Series
Do I Qualify for a Virginia Expungement?
What is the Process to Obtain an Expungement?
Frequently Asked Questions About Expungement
Every criminal charge or arrest in Virginia is a matter of public record. Just because a person is not placed in handcuffs upon receiving a charge does not mean it is not considered an arrest. Even a reckless driving charge is considered an arrest, despite the fact that often, a police officer allows a charged driver to go on his or her way after a Summons is issued.
The average person may not know how to access the correct government database to check their record, but law enforcement officials, investigators, government agencies, universities, and employers often seek this information when conducting a routine background check.
In Virginia all criminal charges and arrests remain on an adult’s record for life; a person’s criminal record is public. If a person is convicted of the charge, then Virginia expungement is virtually (but not always) impossible. But if that person was not convicted (meaning, there was no guilty verdict or guilty plea), then expungement in Virginia is usually an option. Sometimes, (such as a deferred disposition dismissal following a first-time marijuana possession or drug offense), it is not possible. Ask our local Fairfax criminal lawyer for an analysis of the facts and circumstances unique to your case for an individual assessment. The good news? It will not cost you anything to receive a consultation.
To expunge a record is to seal a criminal arrest or charge from public view. The record is not destroyed, but for purposes of keeping it from the eyes of the public, it is a great tool. The record can be viewed by law enforcement, but only if the court grants permission. A local Fairfax criminal lawyer may be contacted for help with a case that was resolved in Northern Virginia.
There are countless reasons why an individual would seek to petition the court for an expungement of their record. Most of the time, one’s reason is related to reputation and/or employment. By far, the most common reason tends to be in order to preserve the individual’s career, or for the unemployed, to have a real shot at getting hired. Other reasons may include:
- College or University enrollment
- Obtaining approval to serve as a volunteer, especially if working with children
- Clients who hire a self-employed individual
The reality is, the list is probably much longer, as there are many reasons why one might be interested in another person’s criminal record.
We understand how busy people are, and especially how busy those may be who have recently had to deal with the criminal justice system. Surely, anyone who has recently been to court to face a charge is tired and not particularly excited about possibly researching the expungement process, or reading the sometimes difficult-to-understand sections of the Virginia Code (not to mention, local court procedures). If this sounds like you, our two-part infographic guide, presented to you by our Fairfax criminal lawyer, may be a place to start.
Virginia Expungement – Infographic Part I
View Here (or click the preview image below)
Synopsis of Part I: the first infographic is a very basic walk-through of an unfortunately typical situation. We follow a fictitious man named, Brian. Brian finally lands a dream job, only to be fired soon after he begins working. Many employers do not conduct a background check until after the employee has started working for a few weeks. There may be several reasons for this, but one may be due to the fact that a background check takes time.
Virginia Expungement – Part II
View Here (or click the preview image below)
Synopsis of Part II: the second infographic explains the process, in very general terms. More or less, it explains why one should hire a lawyer to handle the process instead of making an attempt to file the petition on their own. Several copies must be filed with various entities and agencies. Additionally, one must obtain a copy of his or her fingerprints, and serve the Commonwealth Attorney’s office. The Commonwealth Attorney can object to a petition, in which case a hearing is necessary. This page (the one you are currently reading) discusses what an expungement in Virginia is, who is eligible, but it does not explain the process. This is where the second installment of the Virginia expungement infographic guide comes into play. To truly understand the process and the chances you have at expunging a criminal record, we strongly encourage you to speak with an attorney.
Our Fairfax criminal lawyer created this convenient chart to illustrate how one may qualify.
Please see Part II of the Infographic Guide here.
What Does Nolle Prosequi Mean and May I Obtain Expungement?
Our Fairfax criminal lawyer has heard many people use this Latin phrase interchangeably with the term, dropped charge. It means that the Commonwealth Attorney (prosecutor) has decided (or is unable) to proceed and prosecute the defendant. There is a chance, however, that the charge may be refiled, though it is somewhat rare (concerning misdemeanors, especially). But if it is not refiled within a year in most cases, it should not be a concern after that point. Regardless of whether or not a year has passed, you can petition for expungement.
Most importantly, however, is that if the defendant was not actually prosecuted for the charge, then there can be no finding of guilt. Therefore, a person who was arrested and the charge finalized by a nolle prosequi disposition, he or she should be eligible for expungement.
If I Disagree with the Judge or Jury (but was convicted), Can I Get the Record Expunged?
Unfortunately, no. The good news is, if you talk to your case with one of the excellent local Fairfax criminal lawyers, then they may be willing to discuss an alternative resolution. For example, an absolute pardon (though rare), is sometimes a possibility.
Another avenue is to seek to have a conviction overturned. Please be aware: the relative infrequent and rare nature of these two stated expungement methods are, in fact, very rare. If charged and convicted in Northern Virginia, then the sooner you speak with a local Fairfax criminal defense attorney, the better: the reason being, is that there are strict time requirements to appeal a case.
I was Acquitted! Can I Expunge the Record?
Usually, the answer to this question is yes. But note, there are still challenges. While you or your lawyer may be able to petition for expungement (because you were not convicted), the Commonwealth Attorney (prosecutor) has the right to object. In such a scenario, the judge would decide whether or not to grant the expungement. The prosecution will have to offer a compelling reason. The Commonwealth will typically object only to expungements following a serious charge, if at all, but a sole misdemeanor should not usually present a difficult situation. The mere fact that the Commonwealth Attorney can object, however, is all the more reason to find a local Fairfax criminal lawyer who you believe to be knowledgeable and competent.
If I Accepted a Plea Bargain, Can I Get the Record Expunged?
It depends upon the agreement you reached and accepted. A typical plea bargain requires a guilty plea in exchange for a particular sentence recommendation. In such a case, the answer would be no.
If My Case was Dismissed, May I File a Petition for Expungement?
Remember, the relevant question is one of innocence. When a case is dismissed, it may or may not have to do with the person’s innocence. When a case is dismissed it means it is not on the docket any longer…but you may be eligible for expungement. This is a tricky situation and should be brought to the attention of your local Fairfax criminal lawyer for a full analysis.
Can I Qualify for Expungement if Convicted of an Offense as a Minor?
You will be able to obtain an expungement if you are a minor. In fact, the majority of juvenile records are expunged automatically upon attaining the age of 19, and assuming at least five years have passed since the final hearing related to the case.
There is a big caveat to take note of: if the crime would have been a felony if the juvenile was an adult, then the aforementioned automatic destruction of the record will not take place. Another caveat pertains to records kept by the Virginia Department of Motor Vehicles. Such records are destroyed when the juvenile offender turns 29, not 19. Despite the automatic record destruction times mentioned above, it does not mean the juvenile must wait that period out. In some instances, he or she can petition for expungement before the period has concluded. Speak with a Fairfax and/or Northern Virginia criminal defense attorney for a case evaluation pursuant to the unique facts of your case.
How Can I View My Criminal Record?
A specific application — referred to as a Criminal History Record Check — will need to be submitted, and can be obtained from the local police department as well as the Virginia State Police. There is also an internet form you can use for expediency. A small fee will be required, and the application should be sent to:
Virginia State Police
Central Criminal Records Exchange
P.O. Box 85076
Richmond, VA 23261
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