The Supreme Court Expresses a Broad View of What Constitutes Manifest Injustice for Purposes of Expungement

On March 1, 2018, the Virginia Supreme Court issued its opinion in the case of A.R.A. v. Commonwealth of Virginia, Rec. No. 170199.  A.R.A. is a case where a person (referred to as “the petitioner”) was convicted of a crime that was not a lesser included offense of the original charge.  The original charges were two misdemeanors and a felony.  During the case proceedings, the government offered to reduce the felony charge to a different type of misdemeanor and to nolle prosequi the other misdemeanors, all in exchange for the petitioner’s plea of guilty to the new, amended charge of disorderly conduct, which is not a lesser included offense of the original felony.

When the petitioner sought expungement, however, her request was denied by the Circuit Court for the City of Williamsburg and James City County.  The Circuit Court denied the expungement request on the ground that there were facts supporting the petitioner’s guilt on the original charges.  The Virginia Supreme Court was asked to review this conclusion. In doing so, it reversed the Circuit Court decision and has created important new guidance on when maintenance of a criminal record may constitute a “manifest injustice” for expungement purposes.

The Virginia Supreme Court found that the Circuit Court should not have looked at the actual facts of the underlying case, because it is not the purpose of expungement to re-litigate the issues of guilt or innocence.  Rather, expungement is only concerned with whether the continued maintenance of a criminal record would prejudice a petitioner in the future.  The Supreme Court further stated that any time there is a reasonable basis to believe a person’s credit, housing, or employment may be affected, or is actually affected, there is sufficient evidence for a court to find a manifest injustice would occur if the records are not expunged.

While the A.R.A. holding is not the first case to focus on the “may” portion of the expungement statute, it is the newest and most detailed case on the issue of what constitutes a “manifest injustice” within the area of expungement law.  This new opinion creates a clear standard for what litigants must prove to have their criminal records expunged.

If you have been charged, but not convicted, of a crime and wish to explore whether that charge can be expunged, call the experienced lawyers at Greenspun Shapiro today.

Mikhail N. Lopez
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Criminal Defense and General Civil Litigation Attorney
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