202101.20
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Expungements 101: What Is It and What’s It to You?

I’m going to school you on what an expungement is because I frequently receive calls at my office, emails from the general public, or inquiries through my website contact form submission asking if I can help them clear or erase (“expunge”) a criminal charge. People often don’t know exactly what this means or how it works.

First, what is an expungement? It’s a petition where you are essentially suing Virginia in the circuit court of the county in which you were arrested. It’s a civil case even though the charge you received was a criminal case. Anytime you are arrested for a criminal charge, you get fingerprinted and your photo is taken. In Virginia, this biometric data is uploaded to the Virginia Criminal Information Network (VCIN) and then shared with the National Criminal Information Network (NCIC), which is the FBI database. This is done so that if you skip bail and not appear in court for your hearing, you can be “brought to justice” for fleeing or, for instance, if you’re caught by authorities in another state for something simple as a traffic infraction or returning to the United States after a hiatus in another country.

Now, hopefully, you don’t skip bail, you obey your bond conditions, and go to court. Ideally, you’ve hired a good attorney *wink wink*, and you beat the case! That means you are eligible to expunge your charge by filing an expungement petition. This is important: you can ONLY expunge a charge that has either been 1) Dismissed by a judge; 2) Dropped by the prosecutor (by their motion of nolle prosequi); or 3) Had a trial and found, “not guilty”. If you’re found guilty, then you cannot expunge the charge. The whole point of expunging a charge is so that it does not negatively impact your life down the road, such as your ability to get a job, get approved for a loan, or rent an apartment, just to name a few. The reasoning behind an expungement is that it is not right to keep a charge on your record when it was ultimately dropped or dismissed or you were found not guilty. If you were found guilty or plead guilty to a lesser offense, you still might be eligible to get an expungement for the original, underlying charge for which you were arrested, thanks to a Virginia Supreme Court case Dressner v. Commonwealth. In short, this case allows you to expunge the original charge for which you were arrested if the charge to which you end up pleading does not share similar elements of the crime for which you were arrested, e.g. you were arrested for assault, but you plead guilty to trespassing.   

The expungement petition and process itself is not impossible for a layperson (non-lawyer) to do. Many capable people file for expungements themselves without hiring a lawyer and are most times successful. Most lawyers wouldn’t suggest you do this because if you make a mistake, it can affect the timeliness of the expungement or even cause it to be rejected. Plus, it’s very tedious and can be time consuming. You can read up on the overall process here.

To my knowledge, everyone who has discussed an expungement with me that was eligible ended up hiring me. Most hired me from the beginning right after we won their case, and the few who didn’t at first, tried themselves and either didn’t do it right or ran into too many hurdles. It’s just easier and assuring to hire a lawyer who will do it right. You may have a time crunch; for example, you want to apply for a job but you can’t yet because the arrest will show up in the background check, or you have to apply for a student loan, such as FAFSA, and you have to disclose it, or you want to move to a new apartment and the application requires a background check. The petition process from filing to the hearing to receiving written confirmation from the Virginia State Police informing me that all local (county records), state (Virginia records), and federal (United States records) have been cleared will take anywhere from 3 to 12 months, possibly more if you have an alias, changed names, lived in various states, etc.

An expungement is different from sealing a record. Expunging a record will make it as though the charge never existed meaning you can legally say you were never arrested. This applies primarily for state inquiries. Applying for federal positions or dealing with the USCIS may require disclosure because expungements are state specific and the United States is not bound by state orders. Unlike expungements, sealing a record doesn’t clear the record; it simply removes it from the public view. This means a landlord or employer would need to obtain a court order that allows for someone to unseal it and see the records.

I am sharing this information because an expungement is your right. You may not need to clear your record because you’re self-employed or you already own your home. But, your arrest will always be there if you don’t expunge it. An expungement can give you a peace of mind and keep you prepared for any curve balls. I’m also sharing with you because the Virginia General Assembly, with a strong push from the Democratic party, is making expungements a key element of their criminal justice initiatives. I’ve mentioned these in previous blog posts (here and here) in reference to the Justice Forward movement sweeping through the Commonwealth.

As always, I’m happy to field your questions and hopefully I can help you be where you want to be.

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