Virginia sealing law became effective in 2021- Fairfax criminal lawyer tells you what you need to know

Virginia sealing law (also called here shielding law) is part of the wave of criminal law reforms that resulted during the 2020 and 2021 legislative sessions in the commonwealth as a result of Democratic control of the legislative and executive branches of government, as well as who filled those seats. As a Fairfax criminal lawyer, I recognize that even with the new governor who campaigned on a law and order theme, the possibilities continue to obtain further criminal defendant-friendly legislative breakthroughs. This law brings us beyond the commonwealth’s expungement law, which is limited to acquitted cases and cases dismissed without conditions for dismissal.

What cases are eligible under the Virginia shielding law?

For convictions and deferred dispositions, the following criminal cases are eligible for Virginia sealing applications: “(i) misdemeanor offense, (ii) Class 5 or 6 felony, or (iii) violation of § 18.2-95 (felony theft) … may file a petition setting forth the relevant facts and requesting sealing of the criminal history record information and court records relating to the charge or conviction,” The following Virginia criminal cases are not eligible for sealing applications: DUI and the other drinking and driving offenses, and assault. Va. Code § 19.2-392.12,

How do I apply to seal my Virginia conviction or deferred disposition?

Virginia sealing law covers several sequential statutory provisions and limitations, starting with Va. Code § 19.2-392.5, including circumstances when automatic sealing can be obtained.  For sealing a Virginia conviction or deferred disposition under Va. Code § 19.2-392.12: “The petition with a copy of the warrant, summons, or indictment, if reasonably available, shall be filed in the circuit court of the county or city in which the case was disposed of and shall contain, except when not reasonably available, the date of arrest, the name of the arresting agency, and the date of conviction… The petition shall further state the charge or conviction to be sealed; the date of final disposition of the charge or conviction as set forth in the petition; the petitioner’s date of birth, sex, race, and social security number, if available; and the full name used by the petitioner at the time of arrest or summons. A petitioner may only have two petitions granted pursuant to this section within his lifetime.” Id.

How long do I have to wait to file a sealing application, and what arguments do I need to include for seeking such relief?

Your Virginia sealing application must also must make such showings as the following (this is not an exclusive list): “During a period after the date of (i) dismissal of a deferred charge, (ii) conviction, or (iii) release from incarceration of the charge or conviction set forth in the petition, whichever date occurred later, the person has not been convicted of violating any law of the Commonwealth that requires a report to the Central Criminal Records Exchange… for… [s]even years for any misdemeanor offense; or… [t]en years for any felony offense; … and [t]he continued existence and possible dissemination of information relating to the charge or conviction of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner.” Va. Code § 19.2-392.12. Manifest injustice can be argued, for instance, by stating the adverse risks to one’s career and future job applications, from their criminal record being known.

Should I obtain a certified copy of my case disposition, and should I hire a Virginia criminal defense lawyer to assist me with my sealing application?

It is vital for you to obtain at least one certified copy of your Virginia criminal case disposition soon after your case resolves in court. Even if you obtain an expungement or sealing of the case (or if the case stops showing on a District Court’s misdemeanor case records), security clearance and other authorities will still want documentary proof of the case disposition in court. It is important at least to consult with a qualified criminal defense lawyer before filing a Virginia sealing application, to limit falling into any of the procedural pitfalls in the application process. As with expungement applications, it is ideal to use the services of an attorney for the entire application process.

Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of defendants prosecuted for alleged Virginia DUI, felony and misdemeanor defenses. Before you select a lawyer for your court-pending case, call Jon Katz’s staff to schedule you for a free in-person confidential consultation with Jon, at 703-383-1100.