Are you eligible for an expungement in Virginia?

In the Internet age, it is more important than ever to make sure that your reputation stays as spotless as possible. Employers and providers of education, credit, and housing regularly background check applicants. These background checks are often managed by private companies that stockpile court and public record data. As a result, arrests regularly appear on individual background checks. Oftentimes the records will state that a person was arrested, but will not mention that the person was found not guilty or had their case dismissed.

Because of these concerns, the Commonwealth of Virginia permits the expungement of court and police records in certain cases. The first thing to know is that you cannot expunge a criminal conviction or a traffic violation. Only legally “innocent” people are permitted to expunge their charges in Virginia.

Expungements are available in the following cases:

• where the defendant was found not guilty,

• where the prosecutor dropped the case (a “nolle prosequi”),

• where the charge was dismissed (but usually not if the charge was dismissed after a court-imposed probation program),

• where the charge was amended to an unrelated offense (but not if you were convicted of a “lesser-included” offense that is part of the original charge for which you were arrested).

If you meet one of those four categories, and you have no prior criminal record, and your charge was a misdemeanor, then you are entitled to have the charge expunged.

If you meet one of those four categories, and your charge was a felony, or it was a misdemeanor but you have a prior criminal conviction, then you are still eligible to have an expungement. In this category of cases, however, you must show that the continued existence of the court and police records may cause you “manifest injustice.” That is, you must show that you have been or are reasonably likely to experience some loss because of the existence of the police and court records relating to your charge.

It is important to get your charge expunged as soon as possible. For many people, waiting until someone has found out about your arrest may be too late. Even with the assistance of an attorney, it takes at least six weeks to get an expungement order signed. After the order is signed, the state police have up to one year to complete the process.

If you are eligible for an expungement, and you plan to apply for employment, education, housing, or credit in the future, you should consult with an attorney as soon as possible.