If you've been charged with a crime in Fairfax County and the charge was dismissed, it may be possible to have that misdemeanor or felony charge removed from your criminal record (and from criminal background databases) by a process called Expungement. When a charge is alleged, it will appear on an individual's criminal history and, even if the charge is dropped or dismissed, the charge will remain on an individual's criminal background. Charges are dropped by nolle prosequi or dismissed for many reasons and §19.2-392.2 of the Code of Virginia was enacted to help innocent people avoid the hindrance of a charge affecting their ability to obtain and maintain employment and to obtain credit. Contact our Expungement Lawyer to discuss having the charge removed from your record. We handle all expungement matters in Fairfax County including charges that occurred in Fairfax City, Town of Vienna, or the Town of Herndon. We offer a Free Consultation to discuss your case. Give us a call at 703-273-4100 or use the contact form below.
Expungement Process in Fairfax County
The expungement process commences after the case is resolved and you have decided you wish to have the charge deleted from your record. You can do an expungement two different ways: Do it yourself or have a lawyer do the expungement for you. We always recommend that you hire an attorney to do the expungement so that it's done correctly. In addition, having a lawyer handle your expungement will take the pressure off of you to figure out the process.
Are You Eligible for an Expungement?
The first step in the expungement process is determining if you are eligible for an expungement of the charge. Unfortunately, a conviction cannot be expunged in Virginia. The Legislature is currently evaluating whether to change this restriction so only time will tell if and when a conviction can be expunged in Virginia. As of now, the following types of dismissals can be expunged in Fairfax County:
- Nolle Prosequi: If a charge was dropped by the prosecutor or police officer it is called "nolle prosequi". This includes those charges that are ultimately dropped after your lawyer works out a deal with the prosecutor to have the charge dropped after completing agreed-upon tasks. For example, many times a lawyer can work out a plea deal for an underage possession of alcohol charge where the young individual completes a certain amount of community service for an eventual nolle prosequi of the charge.
- Not Guilty or Acquittal: If an individual went to trial and was acquitted of the charge by the Judge or Jury the charge is eligible for an expungement.
- Accord and Satisfaction (pursuant to §19.2-151): An Accord and Satisfaction are agreements reached between the Defendant and Complaining Witness where the charge is dismissed in exchange for some consideration (usually money). This happens a lot in Assault cases and other "victim" cases. Even though the Defendant is required to pay court costs in these cases, a charge dismissed by Accord and Satisfaction can be expunged.
- Otherwise Dismissed: This means that the charge was dismissed without the entry of a guilty or no contest plea. This may happen when the police officer or a witness fails to appear for Court and the Judge dismisses the charge. In addition, sometimes in finding a person not guilty a Judge may simply order a dismissal of the charge.
- Charge was Reduced from a Greater Charge: Case law has held that if the charge was reduced, the original more serious charge can be expunged provided it's not to a lesser-included offense. For example, a Disorderly Conduct charge can be expunged if the charge is reduced to Trespassing.
In other cases, the charge is simply not expungable. This means if you were to appear before a Circuit Court Judge requesting an expungement the petition would be denied. However, we always advise going down to the Fairfax County Courthouse and requesting a copy of the disposition of your case. We have had cases before where it appeared the person was not eligible for an expungement when they were in-fact eligible. Sometimes the case is old and the person does not recall what happened in court. In other cases, the Judge or Clerk made a mistake on the paperwork and did not mark the appropriate boxes. It should be noted that such mistakes are rare but they do happen. The following types of charges cannot be expunged:
- Convictions: This includes any charge for which you plead guilty or no contest to and were convicted of by the Judge or Jury. Convictions also include those cases in which you plead not guilty, had a trial, and were ultimately convicted of the charge.
- Deferred Dispositions: If the charge was ultimately dismissed but was done pursuant to a deferred disposition it is not expungable. For example, a disposition pursuant to Virginia Code §18.2-251 or §18.2-57.3, is not eligible for expungement because a guilty finding is made by the Judge and deferred for completion of certain terms and conditions (usually probation). While the charge will be dismissed after successful completion of the terms and conditions set forth by the Judge, it is not eligible for expungement because the charge was not "otherwise dismissed" so the person does not occupy the status as innocent of the charge.
- Charges Reduced to Lesser-Included Offenses: Charges that were reduced to lesser-included offenses are not eligible for expungement such as a Grand Larceny charge reduced to Petit Larceny. Neither the Grand Larceny charge nor Petit Larceny charge can be expunged.
How to get an Expungement in Fairfax County
Once it is determined that you are eligible for an expungement in Fairfax County, we will obtain a certified copy of the case result from the court file reflecting dismissal of the charge. This paperwork will tell the Circuit Court Judge that you are eligible for an expungement. It also helps Richmond when they do your background check to find the appropriate records.
Once we have the paperwork, we will draft a Petition for Expungement and attach the certified copy of the case result to the Petition and file it with the Court. The current cost to file an expungement is $86.00. There is a $12 fee to have the Fairfax County Commonwealth Attorney served with the Petition for Expungement. We serve the Commonwealth Attorney ourselves so we don't pay this extra fee. Once the Petition is drafted and filed with the Court, we will create a packet for you to take to Central Records of the Fairfax County Police where you will have your fingerprints done. The cost for fingerprints is $10.00. Your fingerprints will then be sent with a copy of the Petition we have drafted to the Virginia State Police in Richmond where your criminal history will be produced and then sent, under seal, to the Fairfax County Circuit Court along with your fingerprints. Once the record arrives at the Fairfax County Circuit Court, we will draft and file a Notice of Hearing and set the date for the Expungement Hearing. Finally, we will draft an Order of Expungement to hand up to the Judge for their signature.
The Expungement Hearing
In most cases, Expungement Hearings in Fairfax County are relatively quick and a matter of course. We have the Assistant Commonwealth Attorney sign our Order of Expungement and simply hand it up to the Judge for entry. In other cases, we need to have a Hearing to ask the Court to grant our Petition for Expungement. In most cases, we are seeking to expunge a Misdemeanor or Felony charge or combination of charges.
Expungement of Misdemeanors
Getting a Misdemeanor Charge Expunged in Fairfax County is made easier by the Virginia Code because the law requires the Court to grant an expungement for a misdemeanor if the person has no prior record and there is no good cause shown to the contrary by the prosecutor. It is rare for the prosecutor to show good cause which may be that the individual already has a prior criminal record or there was a prior agreement between the parties that an expungement would not be sought by the Defendant when the charge was originally resolved. In most cases, however, the Fairfax County Circuit Court will grant an expungement for a misdemeanor charge.
Expungement of Felonies
Expungement of a Felony charge in Fairfax County will generally require a formal hearing and the showing of a "manifest injustice." The courts have interpreted manifest injustice to mean the impact the charge is having or will have in the future on a person's life. In many cases, this could mean that the charge may cause problems with employment opportunities or entry into schools or obtaining certain professional licenses. In most cases, if we can show a viable possibility of a manifest injustice, the Fairfax County Circuit Court Judge will grant our petition to expunge the felony charge.
How Long the Process of Expungement Process takes
The Expungement Process will take approximately 2 months to complete. Initially, once the fingerprints are done, it takes about 3 weeks for the criminal history to be completed and sent to the Fairfax County Circuit Court. Then, following the Hearing, it takes about a month or so for the charge to be deleted from police and court records. We will receive verification from the Virginia State Police approximately 6 months after the charge has been removed. However, in reality, the charge disappears closer to a month or so following the Hearing.
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