A criminal record can have long-lasting impacts on your life. When criminal records show up in a background check, it can result in you losing opportunities for employment, housing, education, licensing, or financial services. Fortunately, in Virginia, many people who have criminal records are entitled to seek expungement of their records and get a fresh start.
What Is Expungement?
In Virginia, expungement refers to the process by which a person’s criminal records are sealed from public view. Expungement in Virginia does not mean that your criminal records are deleted or destroyed. Your criminal records will still exist and may be accessed upon court approval by certain entities, such as law enforcement or corrections agencies. However, by being shielded from public view, your records will not appear on any publicly available background checks.
Eligibility Requirements for Expunging Criminal Records in Virginia
Currently, expungement in Virginia only affects criminal records relating to arrests and charges that do not result in a conviction. The only records that are currently eligible for expungement include:
- Criminal charges that result in dismissal with prejudice
- Criminal charges that are dismissed without prejudice (a result known as nolle prosequi)
- Criminal charges that are dismissed by accord and satisfaction
- Criminal charges that result in a jury verdict of not guilty
- Criminal charges that you later receive an absolute pardon for
- Criminal charges erroneously placed on your record due to mistaken identity or identity fraud
- Criminal arrests that do not result in conviction
- Juvenile convictions
Records of a criminal arrest and criminal charges that ultimately do not result in conviction permanently stay on your record until you obtain an expungement of those records. If your arrest and charges result in a conviction by any means, including via a plea bargain or by pleading no contest, those records are currently ineligible for expungement.
However, in early 2021, Virginia lawmakers passed a law that, when enacted, will automatically seal dropped and dismissed cases and certain misdemeanor convictions. In addition, individuals will be able to petition to expunge convictions for other misdemeanors and some low-level felonies.
Process of Obtaining an Expungement
The expungement process in Virginia is governed by the expungement statute, codified at Virginia Code §19.2-392.2. To obtain an expungement, you will file a formal petition for expungement in the circuit court of the jurisdiction where you were arrested and/or charged. You must also submit to fingerprinting when submitting your petition. Your fingerprints are used to pull up your criminal records in Virginia. A copy of your petition is also sent to the Commonwealth’s attorney, who has an opportunity to file an objection to expunging your record. Ultimately, the court will schedule a hearing to consider your petition.
At the hearing, you (or your attorney) will need to present arguments that demonstrate why good cause exists to expunge your records. In most cases, you will need to provide proof of difficulties that your criminal record has caused you, such as the loss of employment or educational opportunities.
You may also need to present some evidence of your innocence of the underlying offense. In most cases, courts are more inclined to grant a petition seeking to expunge one arrest or criminal charge and less likely to grant the petition of someone with multiple arrests on their record.
How a Criminal Defense Lawyer Can Help with Expungement
Although you are not required to hire an attorney to pursue expungement of your criminal record, a criminal defense attorney can assist with your expungement and make the process go more smoothly by:
- Reviewing your criminal records and advising you on your eligibility for expungement of your records and the likelihood of your petition being granted
- Preparing your formal petition to give you the best chance at approval
- Advocating on your behalf during the court hearing to establish good cause for expunging your records and defending against arguments the Commonwealth’s attorney may make against your application
If you have more questions about your eligibility for expungement of your criminal record in Virginia or need help with the process, contact Bain Sheldon today for a free, confidential consultation with a Virginia criminal defense lawyer to review your legal rights and options. Call us at 804-282-8625 or contact us online.