When may I be eligible for an expungement in Virginia?

Criminal Record Expungement Torn PaperworkAn expungement can benefit you in many ways. An expungement will make your arrest record inaccessible to the public. That means that if your record is expunged, then potential employers, landlords, and others will not be able to find evidence of your prior arrest, and you will not be required to disclose your arrest or charge to potential employers or others in Virginia.

Expungement Eligibility

According to Virginia Code § 19.2-392.2, you may be eligible for an expungement if you have been charged with a crime and one of the following statements is true:

  • You are acquitted (i.e., found not guilty)
     
  • The Commonwealth’s attorney decides not to prosecute you (nolle prosequi)
     
  • The charges against you are otherwise dismissed, but without a finding of guilt of a finding that the evidence was sufficient for a finding of guilt
     
  • The crime was committed by someone else who used your identity

You may not get an expungement if you pled nolo contendre (or no contest) to the charges against you, were convicted, or entered a guilty or no contest plea agreement. In addition, if your charge was dismissed pursuant to a first-offender program, such as the first-offender drug deferral program under Virginia Code § 18.2-251 or the first offense program for domestic assault under §18.2-57.3, then you may not seek an expungement.

Your prior record and the severity of the charges against you will be important when the Court is deciding whether or not to grant your expungement. A different standard is applied for people with no other prior criminal record who are arrested for misdemeanors. Specifically:

  • If this was your first offense and the charge against you was a misdemeanor rather than a felony, then the Commonwealth must show good cause why the expungement should not be granted. If the Commonwealth cannot show good cause, then the expungement will be granted.
     
  • If you have a prior arrest record or you were charged with a felony, then you need to show that the continued existence of your arrest record would constitute a manifest injustice. That requires proof of the harm you face from having the offense appear on your record, such as denial of employment or educational opportunities.

In either circumstance, you must request an expungement from the Circuit Court of the judicial district in which your original case was heard.

How to Get an Expungement

To get an expungement, you must file a petition and obtain a certified copy of your arrest warrant or indictment. Both documents should be filed in the Circuit Court where the charges against you were resolved. Then:

  • The petition is served on the Commonwealth's Attorney. The Commonwealth has 21 days to respond, although they are not always required to file a written answer.
     
  • You get fingerprinted. You must get a full set of fingerprints from a law enforcement agency. You must provide a copy of your expungement petition to that law enforcement agency to be provided to Virginia State Police.
     
  • The law enforcement agency submits your fingerprints to the Central Criminal Records Exchange with a copy of your expungement petition.
     
  • Central Criminal Records Exchange sends a copy of your criminal history, a copy of the Central Criminal Records Exchange documents you want expunged, and your fingerprints to the Court.
     
  • The Court will rule on your expungement, and if it is granted, it will forward the necessary information to the Virginia State Police to complete the expungement process. Finally, once your records have been expunged, Virginia State Police will send a letter confirming the completion of the expungement process.

An expungement can improve your future by removing a significant barrier to entry for jobs, schools, and other opportunities.

Don’t try to do this alone. You have too much at stake. Instead, consult an experienced Virginia expungement attorney to make sure you have grounds for an expungement and that you take all of the required steps to get the relief you seek. Contact our Fairfax criminal law attorneys today to learn more.