What is an Expungement in Virginia?
An Expungement in Virginia is the removal of police and court records relating to a charge. §19.2-392.1 of the Virginia Code is a statement of policy wherein the General Assembly found that arrest records can be a hindrance to an innocent person's ability to obtain employment and to obtain credit.
Are you eligible for an Expungement?
In Virginia, an individual is eligible to have his record expunged if they are deemed to be “otherwise innocent.” Specifically, if the charge was dismissed without entry of a guilty plea, a not guilty verdict was handed down, or an order of nolle prosequi was entered, an expungement is possible. However, a conviction is not expungeable. In fact, there are a few situations where an individual is not eligible for an expungement even though the charge was dismissed. For example, under §18.2-251 of the Code of Virginia, an individual may be placed on a 1st offender program if charged with possession of marijuana as a 1st offense. In the event all terms and conditions of probation are met, the charge is eventually dismissed. However, this charge is not eligible for expungement because a finding of facts sufficient for guilt was made (but deferred). In another instance, in Fairfax County, the OAR program is available for 1st time shoplifting charges. Even though the charge is dismissed after all terms and conditions of probation are met, the charge cannot be expunged.
Can I get an Expungement for charges that were reduced?
Recent case law in Virginia allows the individual to petition the court to expunge the greater charge and leave the remaining charge on the record. For example, a DWI reduced to a Reckless Driving is eligible for expungement of the DWI since a guilty finding was only made on the Reckless Driving (and not the DWI). After all, reckless driving is not a lesser-included offense of DWI. The courts remain skeptical as they are concerned about removing the entire record since there is still a conviction on the record. Generally, the court will still agree to remove the greater charge and leave the record related to the greater charge so that the entire record is not simply erased.
If you have any questions about expungements or whether you are eligible to petition the court for an expungement, give us a call. You can also get more information in the expungement section of our site. We routinely represent people seeking an expungement of their record.
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