Expungability is one of the first things my clients ask me about as a Fairfax criminal lawyer

Expungability of one’s prosecuted accusations is on the minds of a vast number of my clients. As a Fairfax criminal lawyer, I know that acquittals, unconditional dismissals and other victories are great in court, criminal defendants are looking at the larger picture of how their reputation and livelihood gets affected by dismissed and amended criminal charges still being on their criminal record. This month, the Virginia Court of Appeals provided a roadmap for arguing whether your original Virginia criminal charge is expungeable when it gets amended to another criminal charge. William v. Commonwealth of Virginia, ___ Va. ___, 2023 WL 3011996 (April 20, 2023). Also of note is that concurring Virginia Supreme Court Justice Thomas P. Mann — before whom I previously appeared when he presided as a judge on the Fairfax Circuit Court and Fairfax District Court — expands upon how the Virginia expungement statute is unnecessarily unclearly worded in this regard: “I, much like the majority, am trying my best to work within the constraints in which the Code’s ambiguity has placed the Court. In doing so, I come to the majority’s result, but by considerably different measures,” which Justice Mann then expands upon.

What is the expungability of my Virginia criminal charge that got amended and convicted to another crime?

For purposes of today’s article about expungability of Virginia criminal charges, the relevant language of Virginia’s expungement statute provides that: “If a person is charged with the commission of a crime, a civil offense, or any offense defined in Title 18.2, and 1. Is acquitted, or 2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.” Virginia Code § 19.2-392.2. Clearly, the record of an original Virginia DUI charge is expungable when amended to a wet reckless driving result or other reckless driving disposition (which negotiating I have repeatedly achieved). Similarly, amending a drug, assault or theft prosecution to a conviction for disorderly conduct or trespass would make the original charge expungable, but what happens when the original and amended convicted criminal charges are more closely related?

Virginia criminal law assigns a two-step process to determining whether an amended criminal charge is expungable.

This Williams expungability case from the Virginia Supreme Court confirms the following two-step process for determining whether the original Virginia criminal charge is expungable when the final conviction is a crime amended from the original charge. First, using Blockburger Supreme Court analysis, is the resulting conviction a lesser included charge of the original criminal charge? If yes, then the original charge is not expungable. If no, then we ask whether the charge is a “’completely separate and unrelated charge.’” Williams (quoting Dressner v. Virginia, 285 Va. 1 at 6. (2013).

Should I talk with my Virginia criminal lawyer about whether my original criminal charge can be expunged?

To obtain better insight on this expungability matter, talk with your Virginia criminal lawyer. Fairfax criminal lawyer Jonathan Katz has successfully defended thousands of people prosecuted for alleged DUI and criminal offenses. For your free in-person confidential consultation with Jon Katz about your court-pending case, call 703-383-1100 to schedule your meeting.