Fairfax expungement motions are worth filing when your Virginia DUI charge gets amended to reckless driving

Fairfax expungement motions –and all Virginia expungement motions — are not guaranteed to win, but are ordinarily worth filing if you are eligible for and want such relief. As a Fairfax DUI lawyer, I know that my colleagues and I were not thrilled with a recent Fairfax Circuit Court letter opinion narrowing one’s prospects at expunging the DWI part of a case record after the matter has been amended to reckless driving, usually with wet reckless conditions. No matter how many times I am ready to remind people that such opinions bind no other judge, in reality when a judge takes the time to extensively research, analyze and write about a challenging and complex area of the law, their colleagues are not going to ignore the opinion and may — with their own already significant workloads — be reluctant to thoroughly and extensively research and analyze the entire issue anew (particularly if the issue is not central to the matter the new judge is handling) and all the more so the more that they find the authoring judge’s intellect, judgment, and leanings to not require revisiting the entire issue from the ground up.

Fairfax expungement motions for wet reckless cases got beneficially revisited this month by a different circuit court judge

Fairfax expungement motions may get filed at a higher volume now that Circuit Court Judge David Bernhard has issued an opinion that effectively sharply differs from the narrow view taken by his colleague Judge David Oblon only two months ago about the availability or not of expungement relief for the driving under the influence of alcohol or drugs part of one’s criminal record after it is amended by agreement of the criminal defense side and Virginia assistant commonwealth’s attorney / prosecutor to wet reckless from a prosecution under Virginia Code § 18.2-266  (Wet reckless typically involves amending a Virginia DWI count to reckless driving generally under Virginia Code § 46.2-852 , receiving an agreed suspended jail sentence length, being ordered to pay an agreed fine, entering the Virginia Alcohol Safety Action Program (VASAP) (which is a “wet” element of wet reckless), having the defendant’s license suspended for up to six months (the statutory maximum), and being eligible for restricted driving privileges.) Judge Oblon’s August 2023 letter opinion takes a narrow view about when wet reckless will ever be eligible for expungement of the DWI part of the record. Judge Bernhard’s October 6, 2023 letter opinion differs sharply from Judge Oblon’s and takes a much more expansive view of the eligibility of expungement under such circumstances. Only as a for instance, Judge Bernhard’s opinion recognizes the extent to which a relation to DWI-type culpability is not automatically established by a reckless driving conviction after a person is charged with DWI in the same incident: “However, the ability of a court to sentence a defendant to complete VASAP is not necessarily derivattive of an amended DUI charge. The trial court can also impose the condition of completion of VASAP in a reckless driving case for ‘any person convicted of a reckless driving offense which the court has reason to believe is alcohol-related…’ The ‘reason to believe’ standard is conceptually distinct from and more attenuated than the requirement the defendant first be charged with DUI…” (emphasis included in Judge Bernahd’s opinion).

Do I get to shop for my motions hearing or trial judge for my Virginia criminal case? Should I judge shop to seek a court advantage?

After reading this article about Fairfax expungement motions, you may be asking yourself about the permissibility, propriety, and procedure for avoiding Judge Oblon and those who agree with him about expunging the DWI part of your record when your case resulted in a wet reckless, and for obtaining or keeping Judge Bernhard or those who agree with him. On a broader basis, many Virginia criminal defendants probably consider who will or might be their judge and how to improve their chances at getting a better judge. This article will not address the issue of judge shopping, which you should raise with your Virginia criminal defense lawyer if the matter is on your mind. On the flip side, merely because Judge A rules in one fashion today does not mean s/he will not change their mind the next time, and does not automatically mean that the judge’s colleagues will follow suit. If a matter is important enough for you to seek judicial relief, do not let the possibility of a loss be the only factor determining whether you seek such court relief.

Is it the end of the world if I am denied expungement relief ?

What will you do if your Virginia expungement application gets denied? Nobody wants people unnecessarily seeing their dirty laundry, which is why people file Fairfax expungement motions and elsewhere. On the other hand, some criminal charges are so minor that others may barely blink an eye at them, particularly if the charge did not get convicted. Certainly, even if your case gets expunged, your case may have been addressed in online news and community cites, and the possibility exists that a private information harvesting company has posted information about your case online (whether or not that company offers to remove mention of you for a fee, which is an unseemly thing to ask payment for). If you want to remove public references that remain after your case is expunged, it is ideal to consult with a lawyer about that.

How do I enhance my chances of obtaining expungement relief, and any court victory for that matter?

If you want to increase your chances of success in Virginia criminal court with Fairfax expungement motions or otherwise, obtain a lawyer with the ability and drive to obtain great results for you against your Virginia DUI, felony or misdemeanor prosecution. Do not proceed with the concept of paying more for any appeal than for your defense before then. Appeals can narrow the relief you can seek in the first place and can be expensive depending on the circumstances. Take the bull by the horns to pursue your best possible defense in the present moment.

Fairfax criminal lawyer Jonathan Katz is razor-sharp focused on achieving the best defense for you against Virginia DUI, misdemeanor and felony prosecutions. By the time you conclude your initial strictly confidential consultation with Jon Katz, you will feel more confident and knowledgeable about your defenses and case prospects. Call 703-383-1100 for your free initial in-person meeting with Jon about your court-pending prosecution.