A criminal record can limit your ability to move forward positively and constructively with your life. A criminal conviction can almost never be expunged in Virginia, but if you were arrested or charged for a crime and never convicted, a Roanoke expungement attorney may be able to help.

If you’ll keep reading, you will learn what the expungement process entails in Virginia, and you will also learn what an expungement attorney will do on your behalf. You’ll also find out about ongoing efforts in the Virginia General Assembly to expand the current expungement process.

Criminal records have always been available to the general public, but with the arrival of the internet, it is now easier than ever to conduct a background check on nearly anyone. The internet allows prospective employers and others to see anyone’s criminal record in mere seconds.

What Records are Eligible for Expungement?

Can you have your criminal record expunged in Virginia? That is, can your criminal record be removed from public access so that it cannot be seen – online or anywhere else – by potential employers, landlords, and others in the general public?

Currently, Virginia is one of fourteen states that almost never permit the expungement of a felony conviction, and it’s one of only nine states that almost never allow for the expungement of a misdemeanor conviction.

Virginia rarely allows the expungement or sealing of a criminal conviction record unless you were granted an absolute pardon for a crime you did not commit. However, if you were charged but not convicted, your criminal record may qualify for expungement.

What Does It Take to Have an Arrest or Charge Expunged?

Expungement means that all criminal records are destroyed or deleted, so they are no longer available to the public, including employers. In most cases, after your record is expunged, you may legally tell employers that you were never convicted of the crime. An arrest or a criminal charge in Virginia may be expunged if:

  1. You were prosecuted for a crime and you were found not guilty at trial.
  2. A charge against you was “nolle prossed” or otherwise dismissed under certain circumstances.
  3. Someone else used your name or ID and was charged with a crime under your name or ID without your knowledge or consent.

When May a Conviction be Expunged?

Thus, if you were arrested for a crime but not convicted, your record can probably be expunged. However, a record for a criminal conviction in Virginia may be expunged in only two circumstances:

  1. A conviction record may be expunged when the person who was convicted did not commit the crime and receives an absolute pardon. Absolute pardons are granted only when the Governor is persuaded someone was wrongly convicted and is in fact innocent.
  2. In some cases, if you received a misdemeanor conviction in Virginia when you were a juvenile, the record may be expunged after you have reached the age of 19 and after five years have passed since the date of the last hearing.

How Does Someone Obtain an Absolute Pardon?

A convicted offender in Virginia may seek an absolute pardon only if he or she has pled not guilty through the entire judicial process and has exhausted all other judicial avenues. Absolute pardons are seldom granted in Virginia. The petition for a pardon is not filed in any criminal court, but directly with the Office of the Secretary of the Commonwealth.

The rejection of a petition for an absolute pardon may not be appealed, but the petitioner may file a new petition two years after the date of the denial.

How Does the Expungement Process Begin?

Your records are not expunged simply because you weren’t convicted of a crime. You must file a petition requesting the expungement. Your first step is meeting with a Roanoke expungement lawyer who can help you file an expungement petition with the appropriate court in the county or city where the case was handled.

A Virginia court is not required to expunge any criminal arrest, charge, or conviction record unless you receive an absolute pardon from the Governor or you were an identity theft victim. A copy of the petition for expungement also must be sent to the prosecutor who handled your case.

That prosecutor may choose to contest your petition for expungement at an expungement hearing, so you must be represented by a Virginia expungement attorney who is familiar with the expungement process and ready to counter any arguments against granting your expungement.

The court may deny an expungement if you were charged with a felony. In such cases, a record will only be expunged if you and your attorney can demonstrate that publicly maintaining your record is causing a “manifest injustice”. If you are seeking expungement of a misdemeanor record, however, the Commonwealth may have to show good cause on why the expungement should not be granted.

Will Virginia Expand Its Expungement Process?

As of October 2020, Virginia House and Senate committees are currently considering legislative proposals that would allow for the expungement of certain criminal convictions in Virginia, and not just the expungement of criminal arrests and charges.

Senate Bill 5043 and House Bill 5146 would both expand the current expungement process in this state. HB 5146 would allow for the automatic expungement of misdemeanor convictions and certain felony drug convictions.

HB 5146 provides that if someone has no subsequent convictions for five years after completing a criminal sentence, the record of the conviction is automatically expunged. The bill is backed by the Virginia State Crime Commission and the Virginia State Conference of the NAACP.

HB 5146 would also keep automatically expunged records from being seen by the public unless the individual is applying for a law enforcement job or for certain federal and state positions.

The proposal excludes violent felonies and sex crimes from eligibility for expungement as well as drug-related felonies such as the distribution of drugs to a minor and the possession, manufacturing, or distribution of substances like methamphetamine and heroin.

What About DNA Evidence?

If you have received a criminal conviction in Virginia, and if a DNA sample was taken from you, you may file a petition, with your attorney’s help, to have your DNA purged from the state’s DNA database – if your conviction was subsequently reversed and your case was dismissed.

Expunging a criminal record is often a difficult legal procedure. If your own criminal record in Virginia is eligible for expungement, or if you’re not sure, the right Roanoke expungement attorney can provide personalized legal advice and guide you through the expungement process.