In a typical week, I will receive several phone calls or email from persons wanting to "expunge" a charge from their criminal record. Many times this is desired because of a job application, but other reasons include personal dignity, adoption, foster care or other situations that require background checks. Unfortunately, most of the people I speak to are not eligible for expungement, even though they claim that a charge was "dismissed" against them. Virginia law has strict requirements for when an expungement of a criminal charge is available to a citizen, and even when available, there is still no guarantee a court will grant it.
So when is someone eligible to have a criminal charge expunged? Virginia Code Section 19.2-392.2 is the governing statute, and sets forth three situations. The first is if you are found not guilty of a charge by the court. The second is if the commonwealth attorney takes a nolle prosequi or the charge is otherwise dismissed against the defendant. Third, an expungement may be ordered if the defendant is granted an absolute pardon for a crime of which he was unjustly convicted. The key to remember with all three scenarios is that an expungement will only be available to a defendant who is innocent.
With that being said, some types of misdemanor crimes are dismissed by courts after taking the case "under advisement" for a period of time. This scenario usually follows a finding by the judge that there is sufficient evidence to make a finding of guilt. However, instead of convicting and sentencing the defendant, the court may order community service to be completed, restitution to be paid, unsupervised probation, or any number of other conditions. Following a duration of time set by the court, if all the conditions have been met by the defendant, the court will dismiss the charge against the defendant. Examples of offenses where this type of arrangement is found include possession of marijuana, domestic or simple assault, and shoplifting.
As you recall, the expungement statute states that a charge "otherwise dismissed" may be eligible for expungement. However, the Supreme Court has interpreted the statute as not to include the situation I described above, where a defendant must satisfy certain conditions set by the court in order to achieve a dismissal of the charge against him. The theory behind this is that expungement is an option only available to innocent persons. The Supreme Court does not connote innocence to situations in which the court finds there is enough evidence to support a guilty conviction, but allows the defendant an opportunity to make up for the mistake by performing certain acts or remaining out of trouble.
The bottom line with expungement is that it is not an available option if you have been found guilty of an offense, or if you have satisfied certain conditions in order to obtain a dismissal. Only when a judge declares you not guilty, the commonwealth nolle prosses your case, or you are pardoned for an unjust conviction can you petition the circuit court for an expungement.
If you have been acquitted of a criminal offense or had the charge nolle prossed or dismissed, contact the Law Office of Charles Homiller at (804)523-2999 for information on how to get it erased from your record. Our experienced criminal defense practice is dedicated to preserving your dignity and livelihood when you have been wrongfully accused of a crime.