Fairfax expungement practice just took a new twist this week when it comes to wet reckless dispositions

Fairfax expungement practice got a wakeup call this week, when Fairfax County Circuit Court Judge David Oblon determined in a detailed written opinion that wet reckless driving convictions amended from an original Virginia DUI prosecution are generally not eligible for expungement. W.H.D. v. Commonwealth of Virginia, CL-2022-9997 (Fairfax Cir. Ct. Aug. 15, 2023). As a Fairfax DUI lawyer, I strongly disagree with W.H.D. Thankfully, W.H.D. is not binding on any judge. However, from a practical standpoint, the judge who wrote the opinion is going to follow the approach detailed therein, some of his Fairfax Circuit Court colleagues may be persuaded by W.H.D., and judges in other jurisdictions will catch wind of W.H.D. A key for a Virginia DWI lawyer to point out is that W.H.D. binds no judge any more than a state court opinion from another jurisdiction would bind a Virginia judge. Furthermore, the case may get appealed.

Should this Fairfax expungement opinion dissuade me from seeking such court relief?

This W.H.D. Fairfax expungement opinion should not dissuade Virginia DUI and criminal defendants from petitioning for expungement. First, W.H.D. does not deal with cases that are acquitted or unconditionally and finally dismissed, but instead deals with the universe of Virginia criminal prosecutions that are negotiated by the criminal defendant and prosecutor to amend the charge to another offense that is not a lesser included criminal offense. Your starting point for determining if you are eligible to get your criminal case expunged from the public record pursuant to Virginia Code § 19.2-392.2 is at my 2017 article here and my 2023 article addressing the key Virginia Supreme Court cases on expunging original charges that are amended to another offense, which court opinions are Williams v. Commonwealth of Virginia, 885 S.E.2d 457 (2023) and Dressner v. Commonwealth, 285 Va. 1  (2013). W.H.D. finds that expungement is not available with this case’s original Virginia DUI charge and resulting wet reckless disposition having a common nucleus of operative facts. Defendants and their lawyers seeking expungement of the Virginia DUI part of their criminal record when the case was negotiated to a wet reckless disposition need to start by looking at ways relevantly to distinguish their case from that of W.H.D., and to explain why W.H.D. was wrongly decided, and of course to point out that W.H.D. does not bind any judges.

How do I apply to expunge my Virginia criminal record?

If your case is eligible for expungement, you will want to access the form Virginia expungement petition  and instructions as well as this form expungement order. The Virginia law permits you to pursue this process with a lawyer. Having a qualified attorney may make the expungement process smoother and more likely to succeed. Once your case gets acquitted, dismissed, entered nolle prosequi, or amended to another criminal charge, check with your Virginia criminal defense lawyer close to that time about your expungement petitioning options. If your case has resulted in a conviction for an amended charge, check with your lawyer about the impact the Fairfax expungement W.H.D. decision may have on your own petition.

Charged with violating the Virginia DWI law? Give Fairfax DUI lawyer Jon Katz a call

Fairfax DUI lawyer Jonathan Katz has successfully defended hundreds of people accused of violating Virginia Code § 18.2-266, which bars driving a motor vehicle under the influence of alcohol, beer or wine, drugs or medication. Jon Katz has skillfully taken hundreds of DWI cases to trial and repeatedly obtains great results negotiating such cases. (Past successes do not guarantee your own case outcome.) Jon read this W.H.D. Fairfax expungement opinion soon after it was made public, and keeps abreast of wide ranging legal developments for your best defense Call 703-383-1100 for your free in-person initial consultation with Jon Katz about your court-pending case.