Virginia Criminal Law Update: Expungement

I consider myself pretty knowledgeable when it comes to expungements; I’ve handled many of them for my clients. However, even for me, the new expungement law, which will come into effect in Virginia soon, can be confusing. Before I dive into the details, you might want to refresh your memory by reading my post from earlier this year. Here’s the gist.

An expungement is a process where a person who was charged with a criminal offense can have the arrest record erased (or “expunged”) from their record. This can be done IF the charge was dropped by the prosecutor (“nolle prossed”), dismissed by a judge, or was found not guilty after a trial. A very smart colleague of mine by the name of Patrick Blanch successfully argued a case to the Virginia Supreme Court and the result was that if the charge for which that person ultimately was found guilty did not share the same elements of the original charge, then the charge for which someone was arrested could be expunged. Basically, if you got charged with destruction of property, but were found guilty of trespassing, you could get the destruction of property expunged. I won’t get into the principles of why that serves the interest of justice, but it does.

Now, into the new law. Why did they update this law? So, there were problems with the current expungement law with respect to first-time offense deferred disposition type cases. This is where there is a law which prohibits expunging the charge if you took a deferred disposition because it was the first time you were ever charged with that crime. For example, Domestic Assault & Battery. If it was your first time being charged for Domestic Assault & Battery, you could enter any plea to the charge, however, the judge wouldn’t find you guilty based on that plea. Rather, the case is continued for 2 years and you have to complete some classes, be on probation, and complete some other tasks. And then, at the end of two years, the charge would be dismissed. Now, if you do everything and it’s dismissed, what happens if you end up committing the same crime again? You couldn’t expunge it because you wouldn’t be able to do the first-time offender deferred disposition because it actually wasn’t your first time.

So, the new law was promulgated to address this issue. Since the point of not being able to expunge the first-time offender deferred disposition was so you couldn’t do it again, what about those who truly learned from their mistake? Shouldn’t they be able to claim a clean record if they did all they’re supposed to do and got the charge dismissed? I think so and so did Virginia’s legislature. However, the new law isn’t perfectly clear. I think we’ll have to see how it plays out in the courthouses and see what actually happens in real life with individuals trying to expunge a criminal charge.

If you’d like to try to make some better sense of it, take a look here and send me an email. I’ll be sure to be reading up on this as well. As always, do not hesitate to contact me if you have questions.