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.
I agree with the majority of your expungment explanations. However, you did not take into consideration the "deferred prosecution plea." It's different than deferred judgement, I did not enter a plea for a class I misdemeanor but I agreed to a 6 month probation period and after 6 months, the charges will be dismissed. I have no prior criminal record. Since I did not plea guilty or no contest, and I still have access to a trial if I violate my probation, my lawyer says I still qualify for expungment after 1 year.
Posted by: frank | May 31, 2007 at 08:30 AM
I was looking for information on getting a shoplifting charge expunged but I see that if you plead guilty you can not get it expunged. Is there any way to get a pardon from the courts. My shoplifting charge was almost 7 years ago. Is there a time limit for how long a misdemeanor will show on my record?
Posted by: Robert Brownie | January 10, 2008 at 12:53 AM
In 2003 I was found not guilty and had charges dismissed for a Urinating in Public charge under the condition that I returned to the court in 6 months to prove that I had not committed any further crimes, which I had not. I am now interested in having this information expunged from my record, however, I am wondering if because I had to "satisfy certain conditions" that I am ineligable for expungement. If this is the case, is there any way to plea my case to a judge for an expungement. I am a professional with a graduate degree and although I was not charged with any crime, the Urinating in Public charge appears on my criminal record stating it was dismissed. I find this very embarrasing and prejudicial when apply for employment or volunteer positions, is there any thing I can do?
Posted by: Candice | May 28, 2008 at 08:04 PM
If you did not plead guilty, and were never found guilty by the judge, you should be able to apply for an expungement of the charge.
Posted by: Charles Homiller | October 07, 2008 at 11:39 PM
In 2001, I was taken to the course for the case of embezzlement, a felony case. I begged, and pleaded my attorney (a public defender) to request proof to substantiate their claims against me, but was told to hush up by him and the judge told me one more outburst, and I would be sent from the room. There was a signed confession by me, who at the time had never been into ANY sort of trouble, and was told by the loss prevention people, sign it or go to jail I felt was the only option. 10 years later, I have NOT gotten into any trouble whatsoever and I am interested to know if there is anything I can do about this now?
Posted by: Russell Johnson | July 20, 2011 at 05:35 PM