Expungement Process: What You Can Expect

November 6, 2019

Expungement Process: What You Can Expect

person in handcuffs

So you’re seeking expungement an arrest? But you aren’t sure what the process entails. By the time you finish reading his article, you will have a better idea of what to expect.

Assuming that the charge meets the eligibility requirements under Virginia Code 19.2-392.2, your attorney will start the process by drafting a petition for expungement, outlining the details of the charge, its eligibility criteria, and your identifying information. To complete the filing, your attorney will attach a certified disposition or final order related to the charge to the petition. Virginia expungements are filed in the circuit court civil division of the judicial district where the underlying charge was litigated. The filing fee in most jurisdictions is $98, but can vary from court to court.

After the petition and accompanying documents are filed, your attorney will provide you with a file-stamped copy of the filing. You will be directed to present the filing at a participating local law enforcement station where you will be fingerprinted. Please note that most agencies charge you for the fingerprint card ($5-$10). The personnel that fingerprint you will take the filing, attach it to your fingerprint card, and send it to the Division of State Police Records in Richmond. They will conduct the necessary identifying analysis and then forward the packet back to the circuit court clerk’s office.

In most jurisdictions, the circuit court clerk will not allow you to set a hearing date until they have received the expungement packet from the Division of State Police Records. Arlington County, however, has a practice of setting a court date at the time of initial filing. Regardless, the expungement hearing will not take place until the packet has been returned to the circuit court clerk’s office.

Prior to the expungement hearing, your attorney will need to prepare to argue the petition, showing both that eligibility requirements were met and that the continued existence of the arrest record presents a manifest injustice to you. Though the Virginia expungement statute allows for the Commonwealth to respond to a petition in writing, failure to do so does not prevent them from objecting to the expungement petition. 

At the expungement hearing, the Commonwealth may agree or object to the expungement petition. Typically, objections either challenge the expungement eligibility of the charge or whether the continued existence of the arrest record presents a “manifest injustice” to you. 

If you have a prior criminal record or the charge is a felony, or both, then the your attorney will likely need to show that the continued existence of this charge causes or may cause a “manifest injustice” to you. In other words, your attorney would have to convince the judge that the continued existence of the arrest record is harming or may harm your ability to proceed with your life as planned. The judge may also require a showing of manifest injustice in cases of “partial expungements” discussed in What Qualifications Must I Meet for Expungement. As you can imagine, these are the scenarios where an attorney is an absolute must.

At the conclusion of the hearing, the judge will determine whether or not to grant the petition for expungement. If the petition is granted, then an order will be sent to the Department of the State Police, who will oversee the sealing of records. Upon completion of this process, the Department of State Police will produce and mail a letter to the petitioner or his/her attorney stating that the expungement has been complete. The process from initial filing to receipt of a closure letter can take varying amounts of time depending on the type of case, the home jurisdiction, and volume of expungements at that particular time.

Even though you now know about the process and what to expect, we can all agree that expungements have a lot of working parts and can be difficult at times. Likewise, I encourage anyone who is serious about seeking an expungement to hire a qualified Virginia expungement attorney to provide guidance and fight for the best result. To discuss your options, schedule a consultation appointment today.