My Case Is Over. Can I Get an Expungement? (Pt 1)

Mikhail N. Lopez
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Criminal Defense and General Civil Litigation Attorney

Fairfax Criminal Attorney Misha Lopez discusses when & how an expungement can be sought for adults. See part 2 for information about juvenile expungements.

What Is an Expungement? 

Expungement is the process of removing all records concerning an arrest and charge from public access after a criminal charge has been dismissed.  While it may sound like any dismissal will be sufficient to make a petitioner eligible for expungement, that is not always the case (see below).

If a petitioner’s expungement is granted, all the court’s files, records held by the Virginia Criminal Information Network (a.k.a. Virginia criminal history), records held by the National Crime Information Center (a.k.a. federal criminal history), and any other agencies that may hold records of the charge and/or arrest will be removed from public access.

Beyond the benefit of wiping information about the offense from Virginia and federal background checks, the expungement also gives the petitioner the right to treat the offense as if it never occurred.

The practical effect is that it prevents, to a great extent, employers, educational institutions, and state agencies or officials from requiring the petitioner to disclose any information concerning the arrest or charge, after the expungement final order is entered.  And, if anyone obtains information without a court order, which in itself is difficult to obtain, they can be prosecuted for a class 1 misdemeanor.

Am I Eligible for an Expungement? 

Petitioning for an expungement is not a complicated process most of the time, but it is full of ambiguities.  The key to expungement is determining eligibility and the standard that will apply to a particular petitioner’s case.  The Virginia Supreme Court has drawn a very clear line as to who is eligible for expungement.

Anyone who has been convicted of an offense, had a finding of facts sufficient to convict, or has entered a plea of guilty (even if deferred to be dismissed later), nolo contendere, or submitted an Alford plea is not eligible for expungement.  Anyone who has been acquitted, has had a charge nolle prossed, or has not entered a plea of any sort and has the charge dismissed after fulfilling conditions can seek expungement.

The Actual Expungement Process 

The next important step is to figure out how strong of a case the petitioner must present to the court to have the expungement granted.  There are two potential standards that may apply to any expungement.

One standard is that the Commonwealth’s attorney must prove “good cause” for why an expungementshould not be granted.  This favorable standard only applies to petitioners who have never been convictedof any offenses and the charge(s) the petitioner seeks to expunge are only misdemeanors.  In most jurisdictions the Commonwealth will not oppose these requests, and there is almost no chance that the request will be denied unless there is a technical issue with the submission of the petition.

The second standard is less favorable to petitioners and requires the petitioner to establish “manifest injustice” as a result of the court and other agencies keeping the record sought to be expunged publicly accessible.

This standard applies to any petitioner who has been previously convicted of any offense at any time, or to any petitioner seeking to remove a felony charge, regardless of their existing record.  Perhaps obviously, the worse someone’s record and the more minor the charge, the more difficult it is to establish manifest injustice.  However, what constitutes a manifest injustice is completely ambiguous and is left to the discretion of the trial court judge.

Speak With an Attorney About Your Expungement

Seeking expungement is important and should be pursued in every case to give the petitioner the benefits of having a clean (or cleaner) record.  If you are in need of an expungement, contact the experienced Fairfax criminal attorneys at Greenspun Shapiro PC today. Our firm regularly handles both simple and complex expungement matters and is available to guide you through the process from start to finish.

Let’s discuss your specific situation and legal issues in a consultation. You can arrange a meeting with one of our criminal defense attorneys by calling (703) 352-0100 or by using the contact form. From our law office in Fairfax, we provide legal services to clients throughout Northern Virginia, DC, and Maryland.