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Virginia Criminal Defense – When is Expungement Available?

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Criminal defendants have many questions about expunging their court and police criminal case records, including the meaning of expungement, the best timing and approach to filing for expungement, and eligibility for expungement.

Today’s blog entry is limited to availability of expungement.

Virginia’s ” key statutory language about eligibility for filing for such relief provides:

“If a person is charged with the commission of a crime 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.”

Va. Code § 19.2-392.2(A).

The standard for granting or denying expungement of a criminal charge that is eligible for such relief follows:

“If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement.”Va. Code § 19.2-392.2(F).

Obtaining a nolle prosequi (Latin for not prosecuting, or dismissing) by itself does not automatically mean that a Virginia criminal defendant is eligible to petition for expungement. A nolle prosequi obtained unconditionally is eligible to petition for expungement. However,  counts entered nolle prosequi in order to induce a guilty plea (no contest/nolo contendere pleas and Alford pleas are treated as a guilty plea for purposes of Virginia’s expungement law) are not eligible for expungement. Necaise v. Virginia, 281 Va. 666 (2011).

A nolle prosequi obtained after a court finds facts sufficient to find guilt and defers the case for a later nolle prosequi (also known as a deferred finding) are not expungable. Brown v. Virginia,  278 Va. 92 (2009). (2021 update: Deferred dispositions under newer Virginia Code § 19.2-298.02 are expungable at least if the prosecution agrees to such relief.) 

Here is a twist: If the defense and prosecution arrange to amend the original charge (for instance marijuana possession) to another count that is not a lesser included count (for instance reckless driving), and the defendant pleads guilty or no contest to the amended count, the original count is eligible for an expungement petition. Dressner v. Virginia, 285 Va. 1  (2013).

Some criminal defendants might prefer to proceed on their own with an expungement petition, but a lawyer knowledgeable about Virginia expungement law and procedure can add value for assuring that the expungement petition and proposed expungement order are correctly prepared, the defendant is ready for any objection from the prosecution, and any final expungement order gets effectuated as soon as possible.

Criminal defendants eligible for expungement may go here for Virginia’s form expungement petition and here for instructions for filing for expungement. Here is a sample proposed expungement order available on the Fairfax Circuit Court website.