Expungement of Criminal Records – General – Virginia
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1. What is an expungement?
The omission, sealing, deletion, or obliteration of records. Thereafter, the person may legally deny the existence of the records and may not be denied any permit, license, or employment based upon the expunged records. However, expunged records may be disclosed for purposes of employment application as an employee of a law-enforcement agency or for a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record. § 19.2-392.3.
2. Do the records just disappear?
No. When a record is expunged, the record is not destroyed but removed from public access and sealed.
3. Who is eligible to get records expunged?
A person charged and then acquitted, who had charges nolled, or granted an absolute pardon, may petition for expungement. A first-offender arrested for a misdemeanor may have records expunged. Also, any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification. § 19.2-392.2.
Upon receiving a copy of a writ vacating a conviction pursuant to Section 19.2-327.5 or 19.2-327.13, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction.
4. What records may be expunged?
Under § 19.2-392.2, an eligible person may petition for expungement of police records and court records relating to the charge expunged. Also the division with control of DNA records shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of (i) a written request for expungement pursuant to this section and (ii) a certified copy of the court order reversing and dismissing the conviction. § 19.2-310.7.
5. How do I get records expunged?
If a writ vacating a conviction is granted, the Court will automatically forward a copy of the writ to the circuit court, and no petition is necessary.
-An original Petition for Expungement of Record and a certified copy of the charge with the disposition of the charge(s) that is requested to be Expunged.
-Four additional copies of the Petition for Expungement and charge(s) with disposition of the charge(s) that is requested to be expunged.
The copies will be for the following:
1. One copy to be Attached to Subpoena in Chancery to serve on the Commonwealth Attorney.
2. Three copies will be returned to the petitioner to do the following:
Two of the date stamped copies with attachments are to be taken to the County Police Department with one copy to be attached to a complete set of petitioners fingerprints and the other copy to be retained by the Police Department.
The remaining set is for the Petitioner to retain with their records for proof of filing with the Court.
– Order of Expungement
-A self addressed stamped envelope for the return of the fingerprint cards and a certified copy of the final order.
All Petitioner’s are required to obtain a new set of fingerprints for the expungement process. (See §19.2-392.2(E &F)) The petitioner shall obtain from a law-enforcement agency one complete set of their fingerprints and shall provide that law-enforcement agency with two copies of the date stamped petition showing proof that a petition for expungement has been filed with a Circuit Court.
Upon obtaining the set of fingerprint cards, the Police Department will forward one copy of the Petition for Expungement with the set of Fingerprint cards to the State Police to perform a criminal history check. The State Police will then forward the criminal record check under seal to the Court. One copy of the Petition for Expungement will be retained at the local Police Department.
The Petition with a copy of the warrant or indictment if reasonably available shall be filed in the Circuit Court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed and shall contain the following:
– File Number
– Date of Arrest
– Name of Arresting Agency
– Specific Charge to be Expunged
– Date of Final Disposition of the Charge to be Expunged
– Petitioners Date of Birth
– Petitioners Social Security Number
– Full Name used by Petitioner at the time of arrest
– Indicate if the Petitioner has any prior criminal record
For unavailable records that are over ten (10) years old, a destruction letter must be obtained from the Court in which the disposition was rendered.
FILING OF PETITION FOR EXPUNGEMENT:
The Petition for Expungement and other required documents may be filed in person or by mail to the County Circuit Court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed.
The filing fee and service fees must be paid at the time of filing. The Petition will be assigned a Chancery case number.
DOCUMENT TO BE SERVED ON THE COMMONWEALTH ATTORNEY:
The Petition for Expungement must be served on the Commonwealth Attorney with a Subpoena in Chancery. (Rule 2:4) (§19.2-392.2(D))
The Commonwealth Attorney may file an answer or objection within twenty-one days of service or may simply endorse petitioner’s order of Expungement.
SETTING A HEARING DATE:
Once the Commonwealth Attorney has been served and the twenty-one (21) day period, from the date of service has lapsed, and the Court has received the criminal history record information from the Central Criminal Records Exchange a hearing date may be set. An original “Notice of Hearing” must be filed with the Criminal Docket Clerk.
A copy of the Notice of Hearing must be mailed or hand delivered to the Commonwealth Attorney’s Office at least three days’ prior to the hearing date.