Everyone wants an expungement. It’s like the court case never happened, right? Close, but not exactly. There are some misconceptions regarding expungements- what it is and is not; when is a charge eligible; and how to get one. The law provides limited circumstances when an expungement is possible in Virginia.
To qualify in Virginia you must be “truly innocent” of the charge(s). Meaning: convictions cannot be expunged; findings under advisement or deferred findings cannot be expunged (even if later dismissed); first offender dismissals cannot be expunged; felonies reduced to lesser-included misdemeanors cannot be expunged (with few exceptions); and the list goes on.
What can be expunged? A finding of not guilty; a dismissal; or, a nolle prosequi (a.k.a.- “nol pross”).
An expungement does not mean the records will be destroyed. The Virginia Administrative Code regulates how an expungement is carried out. Juvenile records will be destroyed by court order. However, adult records are otherwise “sealed.” The record will be removed from electronic and physical databases and placed into another “physically sealed, separate file.” The record can only be opened by a subsequent court order and is maintained completely separate from all other files, accessible only by the manager of records. Nothing in “normally accessed” files will allude to, or reference, any of the expunged files. The record will not exist but in rare circumstances. One such circumstance is if the person with the expunged record is seeking employment with a law-enforcement agency.
The person one may encounter when attempting to view your sealed records...
A dismissed juvenile record will automatically be expunged automatically once the person turns 19, and once it has been 5 years since the date of the last hearing. However, the record will not be expunged if the juvenile was adjudicated guilty (or, Not Innocent) of a crime that would be a felony if committed by an adult. Some other crimes will be expunged when the person turns 29. All cases are fact-specific and will depend upon the charge and the disposition. If you have any question about when and how a charge can be expunged- contact Brian M. Latuga, Esq. to help you navigate your options.
Let’s look at a hypothetical: You’ve been wrongly arrested for several theft crimes. It wasn’t you. You weren’t even in the state (your alibi from Instagram shows you were clearly on the Teacup ride at Disney). The charges are all dismissed. But now, all charges remain on your criminal record stating they were “dismissed.” There is no explanation on your criminal record that you weren't the person who did those crimes. You feel confident that your record is "clean" because the charges were dismissed. But, anyone looking at that record could (and likely would) assume that there was some kind of procedural or evidence issue that acquitted you - perhaps, maybe, you got lucky.
One year later, you’re arrested for stealing a Slim Jim from the local 7-11. This one you are guilty of, or maybe it was an inadvertent mistake after a long night of drinking. But, now you’d like the prosecutor to show you mercy and give you some kind of awesome plea agreement- or a dismissal because of your community involvement. No go. The prosecutor will look at your previous wrongful arrests as evidence that you’ve “gotten away with it” before. You’re just another criminal and are going “down” for the Slim Jim. You should have gotten those prior charges expunged.