The Reality of Expungement of Police and Court Records in Virginia

Stephen CampbellCriminal Defense

Criminal convictions, arrests, and even police investigations can have wide-ranging collateral consequences on an individual.  Records relating to such events can prevent advancement in one’s career or even getting your career started.

Virginia has enacted a law that allows for the expungement of police and court records under certain circumstances.  Virginia allows for any person who is charged with a commission of a crime or any offense defined in Title 18.2 (Crimes and Offenses Generally) and is acquitted or a nolle prosequi (not prosecuted by Commonwealth’s Attorney) is taken or the charge is otherwise dismissed, may file a petition with the Circuit Court in the jurisdiction where the charges were brought requesting expungement of the police records and the court records relating to the charge.

The General Assembly has even gone so far as to enact a law which details the policy of expungements in Virginia.  Virginia Code Section 19.2-392.1 states “The General Assembly finds that arrest records can be a hindrance to an innocent citizen’s ability to obtain employment, an education and to obtain credit.  It further finds that the police and court records of those citizens who have been absolutely pardoned for crimes which they have been unjustly convicted can also be a hindrance.  This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted.”

Virginia’s stated and practiced policy regarding expungement of police and court records is that expungement is only for innocent people.  For example, if the Commonwealth’s Attorney chooses to not prosecute the charge against a defendant (nolle prosequi), the defendant may petition the Circuit Court for the expungement of the police and court records pertaining to the charge.  Under Virginia law, expungement of police and court records is not available if a charge is dismissed based on successful completion of a first-offender program (underage possession of alcohol, possession of marijuana, or domestic assault and battery).  In order for a defendant to be subject to a first-offender program, the judge must find that the evidence is sufficient to convict the defendant, but then affords the defendant the opportunity for the charge to be dismissed.  The key to whether or not a charge can be expunged is whether or not the judge made a ruling on the sufficiency of the evidence.

I receive the following question at least a handful of times every year: I have a 20 year old conviction for DUI and it is hurting my ability to get a job, can I get it expunged?  The answer to this question is NO!  An adult conviction, regardless of how much time has passed since the conviction, cannot be expunged in Virginia.

Virginia’s expungement laws are more lenient for juvenile matters.  Virginia law requires (with some exceptions) the clerk of the juvenile and domestic relations district court shall destroy its files, papers and records, including electronic records, connected with any proceeding concerning a juvenile in such court, if such juvenile has attained the age of 19 and five years have elapsed since the date of the last hearing in any case of the juvenile.  However, if the juvenile has been found guilty of a delinquent act which would be a felony if committed by an adult, the records shall be retained.

Criminal and traffic charges are matters that should be taken seriously.  A conviction of any crime or traffic infraction in Virginia cannot be expunged.  A person that is arrested an accused of committing a crime or receives a summons for violating the traffic laws should contact an attorney to discuss their options as convictions may have adverse consequences on their employment, even 20 years down the road.