Am I Eligible for an Expungement? An Overview of Virginia’s New Expungement Laws

Am I Eligible for an Expu…

Up until July 2021, Virginia had one of the most restrictive expungement laws in the United States, allowing expungements only for criminal charges for which the disposition was not guilty or for which the charges were otherwise dismissed. Simply put, expungements were only available for those who could show actual innocence, therefore making it nearly impossible for anyone actually convicted of a crime to be eligible for an expungement.

However, in July 2021, lawmakers passed an expungement bill that established a process for automatic expungement of certain convictions, deferred dispositions, acquittals, and for offenses that have been nolle prossed or otherwise dismissed. The system also provides a process for the automatic expungement of criminal records for mistaken identity and unauthorized use of identifying information. More on this below.

Importantly, the new law recognizes the hindrance that an arrest record can have on one’s employment, housing, education, and ability to obtain credit and makes second chances possible for many Virginians. See Bill Tracking - 2021 session > Legislation (virginia.gov). The new law has staggered effects to allow courts and the Virginia State Police to gear up for this immense change, but the new law is set to take effect on October 1, 2025.

The Current Expungement Law

Although the new law does not take effect until 2025, individuals can take advantage of Virginia’s existing expungement laws. Pursuant to Virginia Code § 19.2-392.2, individuals can have the following charges expunged from their record now:

  1. Charges for which the person was found not guilty.
  2. Charges for which a nolle prosequi is taken by the Commonwealth. (Dismissals without prejudice)
  3. Dismissals with prejudice.
  4. Dismissal by accord and satisfaction.
  5. Charges upon which someone used your name without consent. (Identity Fraud.)
  6. Charges upon which the court finds the person arrested was not the person named in the charging document. (Mistaken Identity.)
  7. Pardons.

To take advantage of Virginia’s current expungement laws, individuals should file an expungement petition along with fingerprints in the Circuit Court where the case was disposed of. The individual seeking the expungement must serve the Commonwealth’s Attorney and pay filing fees and costs. See PETITION FOR EXPUNGEMENT (vacourts.gov).

The New Expungement Law

The new law is essentially more expansive and creates new categories of offenses which are eligible for expungement. The new law essentially creates a mixture of automatic and petition-based expungements.

Automatic Sealing

The new law will automatically seal those cases that were dismissed or nolle prosequi as mentioned in the aforementioned section of this article.

The new law will also automatically seal certain misdemeanor convictions. These nine misdemeanors include underage possession of alcohol, petit larceny, misdemeanor shoplifting, simple marijuana possession, possession with the intent to distribute marijuana, disorderly conduct, trespass after having been forbidden, instigating others to trespass, and trespass on posted property.

To qualify for misdemeanor automatic sealing, seven years must have passed since the conviction or deferred dismissal, the person must not have any new convictions during that time (excluding traffic offenses), and on the date of disposition, the person must not have been convicted of another offense that is ineligible for automatic sealing. See Va. Code § 19.2-392.6.

Petition Based Sealing

The new law also allows for individuals who have been convicted of many other misdemeanors and certain low-level felonies (class 5 and 6 felonies), and deferred dismissals to petition the court to request that their records be sealed. Individuals can petition to have misdemeanors sealed after 7 years of being conviction free and felonies after 10 years of being conviction free. Contact an attorney for a detailed list of qualified charges. Note, Assault and Battery against a Family or Household Member and DUI convictions are not eligible for expungement in Virginia.

The current law removes hurdles for many Virginians and allows second chances for those who have paid their debts to society. The new law will bring about much needed criminal justice reform and will offer relief to those who have faced collateral consequences as a result of their criminal record in the past.

It is highly recommended that anyone seeking expungement relief consult with an attorney regarding specifics questions regarding their criminal record.

For questions or comments, please feel free to contact Cindy S. Foster (cfoster@setlifflaw.com) at 804-377-1275 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.