What Qualifications Must I Meet for Expungement

December 10, 2019
document stating criminal record expungement

Expungement is a process to remove records of an alleged criminal offense from related government agencies. Essentially, expungement is a tool that can be used to remove any remaining stigma of criminal process that a person may suffer as the result of an arrest. However, not every charge may be expunged in Virginia.

The first step is to determine whether the charge seeking to be expunged meets the eligibility requirements. To ascertain this, we have to look at the result of the underlying case. Under Virginia expungement law, found in Virginia Code 19.2-391.2, only three types of outcomes to a criminal case are eligible: 

1. If the charge went to trial and an acquittal was entered; 
2. If a nolle prosequi (to not prosecute) was granted on the Commonwealth’s motion; or
3. If the charge was “otherwise dismissed.” 

Therefore, if the charge in question went to trial and the defendant was found “not guilty,” then the charge is eligible for expungement. Also, if the Commonwealth chose to nolle prosse the case, then that charge is also eligible for expungement. Finally, if the charge proceeded to a hearing and a dismissal was entered, it would be eligible for expungement.

It is important to note, the “otherwise dismissed” eligibility route does NOT include dismissals by deferred finding or suspended imposition of sentence. Essentially, to simplify the distinction, a Virginia expungement requires that there is no plea to the underlying charge and no finding. The legislature seemingly was contemplating a dismissal as a result of a preliminary motion or motion to strike when they included this language in the expungement statute. Additionally, the legislature specifically included dismissal by accord and satisfaction as a viable outcome for Virginia expungement. Bottom line: if your understanding of the outcome in your case is that the charge was “dismissed,” you should probably consult with a qualified expungement attorney to figure out whether or not you meet the eligibility requirements.

Although it is a relatively novel idea, Virginia expungement law has made certain cases eligible for “partial expungement.” In cases where a person is charged with one criminal offense but the charge happens to get amended to that of a criminal offense that is NOT a “lesser-included offense,” then the original charge is eligible for expungement. For example, if a person is arrested for Grand Larceny and on their court date the charge is amended to Trespassing, then the record for the arrest for Grand Larceny would be eligible for expungement. In contrast, if that same Grand Larceny was instead amended to a charge of Petit Larceny, then it would NOT be eligible for expungement because Petit Larceny is a lesser-included offense of Grand Larceny. Take note that if this “partial expungement” is successful, then only the arrest record of the original charge gets struck. Thus, the remaining conviction (in our example, for Trespassing) would still remain.

As you can glean, the eligibility qualifications can sometimes be very simple or very complicated. And it doesn’t end there. Even if the charge is eligible for expungement, the Court may still require you to prove “manifest injustice.” To ensure your have the best chances at success, it is advisable to seek assistance from a qualified Virginia expungement attorney who has a strong knowledge of how expungements work and how to best make them work. Contact Rudolphi Law to schedule your consultation.