Eligibility for Expunging and Sealing Adult Criminal Records in Virginia
UPDATED: June 19, 2018
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Adult criminal records are not automatically expunged. To remove these records from view, see if any of the six circumstances below apply to your situation. If you are unsure of the details, call the clerk of the court where you were arrested or talk to an expungement attorney.
- You were acquitted;
- You were a party in a civil action who was arrested or charged with contempt of court, but found not guilty of the charge;
- The Commonwealth Attorney’s office did not prosecute, and formally abandoned the charge (usually done by with a motion nolle prosequi);
- You were (a) charged with assault and battery or (b) a misdemeanor for which there is a civil remedy. The injured party must acknowledge to the court that the issue was satisfactorily resolved, and the case must have been discharged (Virginia Code §19.2-151);
- Your name or identity were stolen and used in by a defendant in another criminal case;
- You were convicted but subsequently granted an Absolute Pardon, based upon a determination of an unjust conviction.
Consequences: Notice some commonalities amongst all the eligibility requirements: in order to qualify for an expungement, you must not have pled guilty or been found guilty of a criminal charge. Even a minor charge is disqualifying if you pled guilty for any reason, including the advice of your attorney. Expungement is a legal tool available for innocent people, not those who are guilty of the crime they are charged with. Similarly, if you plead nolo contendre, you are not eligible for expungement. The reason is that this “no contest” plea means in effect that you were willing to be considered guilty for sentencing purposes, and expungement is, again, only available to those who are maintaining a claim on their innocence. Absolute Pardons are the one exception to this very broad restriction. They are granted directly by the Governor, and are the highest level of three types of pardons: absolute, conditional, and simple. If you are guilty but received a pardon, only Absolute Pardons can form the basis for expungement. You can find more information about Absolute Pardons click here at the Virginia Governor’s website.
Manifest Injustice: The law around expungements in Virginia is sometimes very complex. The hurdles that can exist – and some unusual loopholes – tend to center around the statement that you must sign in the expungement petition, Form CC-1473, itself:
“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 to the petitioner. For this reason, I request that the police and court records, including electronic records, relating to the charge(s) be expunged and that a copy of any order of expungement be forwarded to the Department of State Police pursuant to subsection K of §19.2-392.2.”
Whether a judge will grant an expungement request depends on many factors in Virginia. Any factor that tends toward showing the “manifest injustice” of allowing a criminal history record to remain public will tend toward approving your expungement request. Acquittals are a good example. If you were convicted in a lower court or in an indictment process with a grand jury, then that means that at one point there was enough evidence to prosecute your case (against you). If you are found guilty at that lower court level, then even if you appeal and are found innocent later, it does not change the fact that at one point (on the lower court level), there was enough evidence to establish guilt. Because the manifest injustice of leaving your record public is unclear in this context, this will complicate your expungement application even though you were ultimately found innocent.
Establishing “manifest injustice” is not an easy matter. What type of evidence will “convince” a judge of manifest injustice? That will depend on the judge in most cases. There are as many different cases and fact patterns as there are judges, and speculating about what may convince one person is not productive. If your case is at all uncertain, or if you have any questions about the viability of your expungement application, it is best left up to an experienced expungement attorney in Virginia to persuade the court to grant your petition.
For other articles on Virginia expungement of criminal records, click on the following:
Overview of Virginia Criminal History Record Expungements
Process for Expunging Adult Criminal Records in Virginia
Expunging Juvenile Criminal Records in Virginia
Process for Expunging Juvenile Criminal Records in Virginia
Do I Need an Attorney to Expunge My Criminal Record in Virginia?