Expungement Guide

Virginia Expungement

Expungement of a Criminal Record in Virginia
An expungement of a criminal record takes place when one's criminal record is sealed, making it no longer public. Obtaining an expungement has many advantages. It makes obtaining a job or housing easier. In essence, an expungement wipes a person's slate clean, allowing him to start over without having a prior record looming over his head.

A person can file to have all records associated with the arrest and court proceedings expunged. This would include police reports, investigation reports, any reports leading up to the conviction, detention or correctional facility records and court documents.

Who Can Seek Expungement of Criminal Records in Virginia?
The examples below provide instances for when a person may seek an expungement of a criminal record.
  1. A defendant in a criminal case can seek expungement if he enters a "not guilty" plea and after his trial, is acquitted of all charges.
  2. A defendant in a criminal case that the Commonwealth Attorney's office decides not to prosecute, by filing a motion to nolle prosequi the charge(s) can seek to have his records expunged.
  3. A defendant who is charged with a criminal assault and battery or a misdemeanor may seek expungement when there is a remedy by civil action if the injured party acknowledges to the court there has been satisfaction for the injury, and the court grants an order discharging the case pursuant to Virginia Code 19.2-151.
  4. When a person's name or identification have been used without consent by a criminal defendant in a criminal case, the person's whose name was used can clear his/her name by obtaining an expungement.
  5. A defendant who has been convicted of a crime and is subsequently granted an Absolute Pardon based upon determination of an unjust conviction is eligible for an expungement.
  6. A defendant whose case has been dismissed may be eligible for an expungement.
Juvenile Record Expungement
Most juvenile records are automatically sealed once the juvenile reaches 19 years of age or five years have elapsed from the date of the crime. Vehicle code violations are expunged when the juvenile reaches the age of 29, which includes DUIs. Violent felonies are not automatically expunged for juveniles.

A defendant who writes a bad check but later pays the victim the full amount may also be eligible for an expungement once the case has been dismissed. This dismissal may allow the defendant to claim innocence in a criminal prosecution.

Who Will Not be Granted an Expungement of Criminal Records in Virginia
A person will not be granted an expungement just because he thinks he was wrongly convicted. There must be an Absolute Pardon, a Conditional or Simple Pardon will not suffice.

If a person pleads guilty to ANY crime, felony or misdemeanor, he cannot have the crime expunged in the state of Virginia. It is irrelevant whether the defendant is now claiming innocence or if a long period of time has passed. In Virginia, the record of a criminal conviction is permanent.

If a person pleads nolo contendre he will not be eligible for an expungement. A plea of nolo contendre is not a confession of guilt, but legally this is an expression by the defendant of willingness to be considered guilty for the purpose of imposing judgment and sentence. Entering this plea is not consistent with claiming to be innocent of the crime charged. Bindra v. Commonwealth of Virginia, 51 Va. Cir. 28 (1999).

Similarly, entering an Alford plea (defendant maintains innocence, but concludes that the evidence requires entry of a guilty plea) precludes later claiming innocence, for the purpose of seeking an expungement.

If a defendant does not meet any of the eligibility criteria the judge does not have the discretion to grant an expungement, no matter how compelling reason as to why he needs the expungement.

Expungement of a Misdemeanor in Virginia
If a defendant is acquitted of a misdemeanor charge and has no prior criminal record, then the applicant shall be entitled to an expungement. However, if the Commonwealth Attorney's office can show good cause at the petition hearing as to why the expungement should not be granted then the petition may not be granted.

Expungement of a Felony in Virginia
In order to grant an expungement for a felony, the court may require clear evidence, such as documentation from a prospective employer, of need for expungement. It is the petitioner's (defendant's) burden to demonstrate "that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice." Virginia Code 19.2-392.2-F.

See also:
West Virginia Expungement
Virginia Misdemeanor External link (opens in new window)
West Virginia Misdemeanors External link (opens in new window)
Virginia Felony External link (opens in new window)