Ned Michie
​Attorney at law

Representing ​Virginia Clients
For Over 30 Years

Arrest Record

​Expungments

Free Consultation and Reasonable Rates

Office in Charlottesville, Virginia
​
​​(434) 296-1198

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Personal Attention to Every Case

Experience Matters

I've been honored to be chosen by multiple lawyers and law professors for
​legal representation of themselves or their family members on criminal and traffic cases. 
​Let me put my experience to work for you.

Expungements of Criminal Records

Expungements are the way to shield from public view the record of a criminal charge and arrest.
​
     Expunged records are sealed by the local courts and are therefore no longer public records.
State records are also sealed pursuant to regulations (see, e.g., 6 VAC 20-120-80)

      Once a criminal charge is expunged, you can legally deny in an interview or application
​that you have ever been charged and/or arrested for the expunged crime.
Va. Code § 19.2-392.4.

There are exciting new developments regarding expungements in Virginia. 
As noted further below the law has been that only cases that resulted in a dismissal or finding of not guilty were eligible for expungement. 
The 2020/21  Virginia Legislature, however, has now passed a law the details of which are not fully settled, but it appears it will provide for essentially immediate expungements if a charge is dismissed or there is a finding of not guilty unless the prosecutor objects and establishes one of several reasons for not expunging the record of the case.  Moreover, for several misdemeanor convictions (including petit larceny, disorderly conduct, trespassing, and marijuana cases) the courts will automatically expunge the records after 7 years if certain conditions are met.  So in these situations the expungement will happen without the person convicted needing to do anything.

Additionally, most but not all other misdemeanor convictions and even many felony convictions can be potentially expunged after a 10 year period without other felony charges along with some other conditions being met. 




Current but Expiring Law is described below

UNFORTUNATELY: In Virginia State Courts,
​Full and Final Criminal CONVICTIONS CANNOT CURRENTLY BE EXPUNGED*

Expungements are generally reserved for defendants found
Not Guilty or when a charge is Dismissed. 
(Charges dismissed under a first offender program
usually cannot be expunged)

The Law and Petitioning Process for Seeking an Expungement is Complicated.
Indeed, the Law Specifically States:
 "Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law,
shall be voidable upon motion and notice made within three years of the entry of such order."
Va. Code § 19.2-392.2 (m)  

* The controlling statute is Va. Code § 19.2-392.2. It states:
         To be eligible for an expungement in Virginia a defendant in a criminal case must have been
 "acquitted," or a "nolle prosequi is taken" by the prosecutor (a common type of voluntary dismissal of a charge by a prosecutor), "or the charge is otherwise dismissed. . ."
​
*Four other situations where expungements are allowed under the statute are: 
(1) if someone falsely used your name when that person was charged and convicted of a crime;
(2) if you receive an absolute pardon from the governor for a crime you did not commit;
(3) if your conviction was vacated on a writ of actual innocence pursuant to § 19.2-327.5 or 19.2-327.13;
(4) if an assault and battery charge is dismissed by accord and satisfaction pursuant to § 19.2-151.
​
Call me to Discuss the Your Particular Situation.There is no charge for initial consultations.
(434)-296-1198

The purpose of allowing expungements is pretty clear. The legislature recognizes, in Va. Code § 19.2-392.1, that "arrest records can be a hindrance to an innocent citizen's ability to obtain employment, an education and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted."

Court's Discretion
        The Virginia law generally leaves the decision whether to grant an expungement in the hands of the judge.  The statute states:

"If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement."   Va Code § 19.2-392.2 

       Moreover, the courts generally don't allow expungments for charges dismissed under a first offender program, on the theory that expungements are for those cases where the evidence does not establish guilt. See, e.g., Commonwealth v. Jackson, 255 Va. 552, 499 S.E.2d 276 (1998).

Expunged Records Still Exist -- and can be viewed by order of the court or by certain government agencies. See Va. Code § 19.2-392.3.    

​Private Employer Records Request Procedure
" Va. Code § 19.2-389 (H). Upon receipt of a written request from an employer or prospective employer, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish at the employer's cost a copy of conviction data covering the person named in the request to the employer or prospective employer making the request, provided that the person on whom the data is being obtained has consented in writing to the making of such request and has presented a photo-identification to the employer or prospective employer. In the event no conviction data is maintained on the person named in the request, the requesting employer or prospective employer shall be furnished at his cost a certification to that effect. The criminal history record search shall be conducted on forms provided by the Exchange."