While misdemeanors are not the most serious of crimes, someone with a misdemeanor arrest on his record may have problems when applying for a job or an apartment. Expungement is the process of restricting access to a specific part of a person's criminal history. Each state enacts its own laws on expungement, and some don't allow it at all. Virginia does permit expungement in certain situations. Anyone living in Virginia who has been arrested for a misdemeanor will want to get an overview of the law and the process to apply.
Expungement in Virginia
Every state with laws permitting expungement must determine which offenses are eligible for expungement, the circumstances in which someone can apply for expungement and how that application process should proceed. In Virginia, expungement statutes are found in the Code of Criminal Procedure, Title 19.2 of the Code of Virginia.
In Virginia, expungement means the omission, sealing, deletion or obliteration of criminal records. If expungement is permitted by the court, the person whose offense was expunged has the legal right to deny the existence of the criminal records. Under Virginia law, she cannot be refused any permit, license or employment based upon the expunged records.
Records Disclosed for Law Enforcement Purposes
While expunged records are placed beyond public access in Virginia, they do not totally disappear. They are still in the computers, and the expunged records may be disclosed in some circumstances. For example, if a person is applying for a job in a law enforcement agency, the records are revealed to the employer. Likewise, the expunged records can be revealed in the context of a pending criminal investigation if the investigation would be jeopardized without access to the record.
Limitations of Virginia Expungement
Not every crime can be expunged in Virginia, and not every person convicted of a crime is eligible for expungement. The Virginia code permits people to file petitions for expungement when the person is:
- Charged with a crime and then acquitted.
- Charged and the charges are nulled (dropped) or dismissed.
- Convicted, but granted an absolute pardon.
- A first-time offender arrested for a misdemeanor, but acquitted.
- The victim of identity theft, and the thief has been charged or arrested using the victim's name or identification.
Anyone who pleads guilty or nolo contendere (no contest) to a criminal charge cannot have the offense expunged in Virginia. It does not matter how many years have passed since the plea was entered, nor the fact that the person now declares that he is innocent.
Virginia Process for Expungement
If a Virginia court grants a writ vacating a conviction, it automatically forwards a copy of the order to the circuit court for expungement of that conviction. No petition for expungement is necessary in this case. Once a charge is expunged, the person can petition for expungement of all police records and court records relating to that charge. The division in charge of DNA records must purge the data bank of all records and identifiable information relating to the person.
In other cases, the person must file a Petition for Expungement in Virginia. With this petition, he must also file a copy of the order for acquittal or the dismissal of the charges, as well as the warrant or indictment for the charges he is seeking to have expunged. Finally, he must submit one complete set of fingerprints from a law enforcement agency and give a copy of the petition to the agency. There is a different, easier form for expungement in Virginia if the person has been granted a complete pardon.
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