Virginia- Beware filing for expungement before the prosecution deadline has passed
When my client and I leave the courtroom with delight over a criminal case acquittal or unconditional dismissal, the conversation ultimately turns to my client’s option to file for filing an application to expunge the case record.
Under such circumstances, I tell my clients the following:
– Consider whether the case was dismissed or amended in exchange for an agreement not to seek an expungement.
– Before filing for expungement, obtain several comprehensive court-certified copies of the case disposition. Save them in such various places as a safe deposit box. Such people as security clearance authorities and immigration officials will likely want to see such documentation if the case gets expunged.
– Most, but not all Virginia misdemeanors must be prosecuted or re-prosecuted no later than one year after the alleged criminal incident date. The list of misdemeanor cases that can be charged beyond one year is at Va. Code § 19.2-8. If the case has been entered nolle prosequi (not prosecuting), the case can be recharged prior to the re-prosecution date. Beware having an expungement petition alert the prosecutor to consider re-prosecuting. The safest route for seeking expungement of a Virginia misdemeanor case is to wait until the re-prosecution period has ended.