My Case Is Over. Can I Get an Expungement? (Pt 2)

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 juveniles. See Pt. 1 for info about adult expungements.

What Is an Expungement?

Expungement is the process of removing all records concerning an arrest and charge from public access after being accused of a criminal offense, but then having that offense dismissed.  Adults and juveniles (Virginia residents under the age of 18) both have the right to pursue an expungement, but the law and procedures governing adult and juvenile expungement are quite different.  This article discusses juvenile expungements, but should you wish to learn more about adult expungements visit Part 1 of this series.

Am I Eligible for an Expungement? 

As with adult expungements, the two key issues are:

  • eligibility for relief, and
  • what evidence needs to be established to receive an expungement.

Unlike in the adult expungement area, the Virginia Supreme Court has not clearly ruled on the eligibility requirements of the juvenile expungement statute.  This has given many Juvenile and Domestic Relations Courts the opportunity to grant expungement not only in cases where the charge is dismissed outright, but also in deferred finding cases, which are generally not permitted in adult expungements.

What Are the Differences Between Adult & Juvenile Expungements?

Also unlike adult expungements, the standard of proof that is required in juvenile expungement cases is always limited to whether the Commonwealth’s attorney can prove that there is “good cause” to deny the expungement.  Even if a juvenile is charged with a felony, the burden remains on the Commonwealth’s attorney to prove the charge should not be expunged.

In addition to these substantial differences, there is another key difference between adult and juvenile expungement: a juvenile will have his record automatically expunged even after being found delinquent (i.e., guilty).  However, it is very important to note that there are several major exceptions to this general rule.

  1. If a juvenile is found delinquent of, or enters a guilty plea to, a felony offense, then the record will never be expunged and will be on the juvenile’s record for life.
  2. If the offense is one of the several specifically named offenses concerning the operation of motor vehicles, then the record will not be expunged until the juvenile reaches 29 years of age.
  3. Note that any specific offense that may be eligible for automatic expungement at 29 will be trumped by the first rule regarding felonies and would then remain on the juvenile’s record for life.

That said, if none of the exceptions apply and the charge sought to be expunged is a misdemeanor, the clerk of the court where the charge was resolved is required by law to expunge those records.  But, again, there are details that must be observed and could impact expungement.

Assuming the offense is eligible for automatic expungement, the process will not take place until both of the following events occur:

  1. The juvenile reaches age 19; and
  1. At least 5 years have passed from the last hearing in any case that is subject to the juvenile expungement law. The five-year requirement is extremely important because it can create considerable delays for expungement.

Contact Our Fairfax Law Office Today

Is your case over and need to inquire about an expungement? If so, it’s time to contact a trusted Fairfax criminal defense attorney at Greenspun Shapiro PC. Our experienced attorneys have helped a number of juveniles cleanse their records and offered advice on how to maximize the benefits of the automatic expungement process.  Our attorneys can help guide you through this complicated process and offer advice. Contact us if you have any questions about juvenile, or adult, expungements.

We will discuss your legal options and needs during an initial consultation. You can schedule a consultation by calling (703) 352-0100 or by using the contact form. From our law office in Fairfax, Virginia, we provide superior legal services to our clients throughout Virginia.