When Can I Expunge My Criminal Record?
A felony record can be a serious problem. Employers and schools will often consider an individual’s criminal record when making a decision. A felony record can be a disqualifier. Even certain kinds of misdemeanors such as stealing can make employers wary. A common question often asked by those convicted of crimes is whether they can have their record expunged. Unfortunately, the answer in Virginia is usually “no.” Criminal records in Virginia are typically for life with few exceptions. That said, there are some circumstances when a record or even part of a record may be expunged.
My Felony charge was reduced to some other misdemeanor, can I get that expunged?
In that circumstance, you may be eligible to have the original felony removed from your record. The misdemeanor would remain. It is a fairly complicated area of law and depends on the specific facts and circumstances surrounding your case.
When Can My Record Be Expunged?
Expungements in criminal cases are usually reserved for circumstances in which the defendant is either adjudicated innocent or the charge is otherwise dismissed. For example, the defendant might be able to get an expungement if the Commonwealth dismisses its case because its witnesses did not appear. Further, a defendant is eligible to have charges expunged when a case is dismissed as the result of an accord and satisfaction. Expungement is also an option to clear your record when another person in essence steals your name and commits a crime under it. There are some records that are automatically expunged in Virginia. Juvenile driving records are automatically expunged when the juvenile reaches age 29. A juvenile’s criminal record is automatically expunged once he or she turns 19. However, this does not apply to any convictions that would have been felonies if they were committed by an adult.
Defendants need to note, however, that expungements are not available when they plead guilty to a charge. When a charge is reduced from a felony to a misdemeanor, it might be possible to wipe the felony arrest from the record. Because the process is complex and the stakes are high, it is best to speak with an attorney before proceeding.
Can I Get An Expungement if I have Been Pardoned?
Finally, an expungement might be possible in cases where the defendant has received an absolute pardon. Absolute pardons are available when the defendant was wrongfully convicted and has been on good behavior since being found guilty. Absolute pardons are rare and expungement is not available with other kinds of pardons. However, even a plain pardon can ease the burden of a criminal record in the eyes of employers.
What is the Procedure for Getting an Expungement?
In order to get an expungement, you need to file a petition in the jurisdiction in which you were convicted. The petition must contain a copy of the warrant or indictment from the court where the charge originated. Copies will be sent to the Commonweath’s Attorney who will have an opportunity to respond to your petition. The court will grant your petition if a “manifest injustice” would other result.
There is an important difference in cases in which the defendant has only a single misdemeanor. In these instances, the burden is on the Commonwealth to prove good cause why the conviction should not be expunged. In any case, the Commwealth will have an opportunity to object to your petition. This elevates the importance of speaking with an attorney before filing. With the help of an attorney, you can make sure your petition is not only properly filed, but contains all the best arguments for your expungement.
