Are You Eligible for Expungement in Virginia?
In this new age of technology and turning directly to the internet for answers, people are able to post questions to various websites and wait for lawyers to respond. This is fine, and a much better way to get information than a google search that may produce an answer that is not from a lawyer and may be incorrect. However, if you decide to post your question, remember this – Do Not Post Specific Details That Can Identify You! As these sites, while posted anonymously, are open to the public and anyone and everyone, i.e. the Police, the Commonwealth Attorney, whoever happens to be on the other side, can have access to that post and you do NOT want to be making any kind of public admission that could be traced back to you.
That point taken care of, we can now explore the topic of this particular blog, which is inspired by a recurring question that presents quite frequently. There has recently been a wave of people trying to find out whether they can have a criminal or traffic charge expunged from their record. While this depends on each person’s individual circumstances, the answer is easier to provide as the possible variables are smaller.
There are instances where a criminal or traffic charge in Virginia can be expunged, which means that the matter will be effectively removed from one’s criminal record. In order for a charge to be eligible for expungement, there must have been an ultimate verdict of not guilty entered by the Court. Expungement is also available if the Commonwealth Attorney nolle prosses the charge, which is a type of dismissal. See §19.2-392.2 of the Virginia Code for further information.
Now what if you were offered and took what is often called “First Offender” status, typically most often used for drug cases (possession of marijuana, possession of schedule I/II drugs, etc.)? In this type of situation the defendant has typically pled guilty or no contest (nolo contondre), although a not guilty plea followed by a finding of guilt also allows this option, and meets the requirements to be eligible for First Offender. The matter is then continued to a new date, sometimes called a check status date or return date, and the defendant must comply with conditions set by the Court. If all the conditions are met, then the charge is eligible to be dismissed by the Court. So you would expect that since there is ultimately a not guilty verdict, then this charge should be eligible to be expunged, right? Wrong. Because there are conditions attached to the potential entry of a not guilty finding, the charge itself cannot be expunged, although the finding would appear on the criminal record as “not guilty”. Only “true” not guilty verdicts are able to be expunged.