An arrest record can make it difficult for a person to:
• get a job
• find a place to live
• obtain credit
• be educated
Virginia law allows for the expungement, or elimination, of arrest records, but only if the charge did not result in a conviction or other finding of guilt. Unlike other states, there is no way to expunge a conviction in Virginia.
Three reasons for expungement
There are only three situations in which Virginia permits a person charged with a criminal offense to seek the expungement of related police and court records:
1. if the person was found not guilty
2. the commonwealth took a nolle prosequi (meaning they did not pursue further)
3. the charge was “otherwise dismissed.”
The first two scenarios are self-explanatory.
But when is a charge “otherwise dismissed” for expungement purposes?
Examples of “otherwise dismissed”
One example is dismissal by “accord and satisfaction,” or when the complaining witness in a criminal case accepts compensation from the defendant and then asks the court to dismiss the charge outright.
This is a common in cases of simple assault, destruction of property, and other misdemeanors. Charges dismissed by accord and satisfaction are eligible for expungement in Virginia.
But the phrase “otherwise dismissed” has a broader meaning as well and can open the door to expungement for people who ended up convicted of a lesser and unrelated crime.
In Dressner v. Commonwealth, the Supreme Court of Virginia ruled that when a criminal charge is amended to a separate and unrelated charge, and the elements of the amended charge are not subsumed within the original charge, the person occupies “the status of innocent” with respect to the original charge, and therefore qualifies as a person whose charge has been “otherwise dismissed.”
DWI changed to reckless driving
A common example is a person whose charge of driving while intoxicated (DWI) was amended to reckless driving. Even though that person was ultimately convicted of reckless driving, the original charge of DWI may be expunged. The criminal history would continue to show the reckless driving conviction, but the fact that it originated as a DWI would be erased.
Felony charge to misdemeanor conviction
This is also a useful tool for when a person charged with a felony is ultimately convicted of a misdemeanor. As long as the final misdemeanor is not a “lesser included offense” of the original felony, the felony record may be expunged.
For example, a person originally charged with felony assault & battery may accept a plea bargain and be convicted of misdemeanor disorderly conduct, a non-violent offense.
Disorderly conduct is not a lesser included offense of felony assault & battery. Therefore, the felony assault charge was “otherwise dismissed” and the person may seek expungement of the felony.
Hurdles to expungement, even if eligible
Even if initially eligible for expungement, certain people may have an additional hurdle to overcome before expungement will be granted. If the person:
• was originally charged with a felony, or
• has any prior convictions of any type
Then the person must establish that the continued existence and possible dissemination of information relating to the arrest causes or may cause circumstances which constitute a manifest injustice, or something which is obviously unfair.
The ”manifest injustice” standard is forward looking, and the circumstances of the charge to be expunged are irrelevant.
Criminal history matters
A person with little or no prior criminal history who has personal and professional aspirations usually is an excellent candidate for expungement. But a person with a lengthy, unexpungeable criminal record is on a different footing. Even if an isolated arrest is expunged, the remaining criminal history remains available to the public.
How to petition the court
Should you decide to move forward with expungement, the procedural requirements must be adhered to, or the court will reject your petition.
The petition must include:
1. a certified copy of the original charging document and provide the date of arrest and the name of the arresting agency.
2. the criminal charge to be expunged, the date of final disposition, your date of birth, and your full name at the time of arrest.
3. a complete set of fingerprints from law enforcement, whic can be obtained from your local police department.
The entire process usually takes one to three months, depending on the jurisdiction and the processing of your petition.
Hope is here
Our attorneys will guide you through the entire process and handle all filing and procedural matters except for obtaining your fingerprints, which must be done on your own.
The chances of success on expungement may depend on the unique factors surrounding your case, and we can help navigate the best path forward. Call us at 703-492-4200 or email us today for a free consultation.