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Understanding Virginia Record Expungement

Perhaps you have heard the terms “expunge,” “sealed record,” or “record destruction.”  There is a lot of misinformation on the Web. In fact, this is one of the most misunderstood areas of Virginia law. Here is a brief discussion of expungement and how it is applied in Virginia, including Loudoun, Fairfax, Prince William, and Winchester.

What is Expungement?

In short, an expungement is designed to eliminate any record of a particular arrest, charge, or criminal case. It removes the file once and for all, in most cases. Like all things in the law, there are general rules, exceptions to those rules, and then exceptions to those exceptions. In general, an expungement is designed to delete the record. Here are the qualifications:

It does not apply to convictions

One of the biggest misconceptions is that expungements are used to get rid of records where a person is convicted. People also seem to think a minor’s record is automatically expunged. Both are incorrect. In truth, only the following types of cases are eligible for expungement:

  • Acquittal
  • Nolle prosequi (will not prosecute)
  • Dismissal (with some exceptions)
  • Absolute pardon
  • Name used in error

It does not destroy the record – it only seals it

This may seem a bit confusing, since there is also a process called “sealing the record.” But once an expungement is approved, the record is no longer available for public access. Only a court may authorize it to be unsealed. Therefore, if you apply for a government job that requires a security clearance or certain professional licenses, you may be surprised to learn that you must disclose the matters, despite expungement.

It is never automatic

You must file a petition for expungement with the appropriate court. It is never automatic. In short, an expungement removes the record of your charges, arrest, and court case from the public records because you were either found not guilty, the prosecutor chose not to proceed, the matter was dismissed, or the person was pardoned.

What rights do minors have?

Minors are treated differently than adults in Virginia. Minors fall into a couple categories: those under 14 and those 14 and older.

Under 14 at the time of the crime

If a minor is under 14 when the crime is committed, then the record will generally be automatically destroyed at 19, provided at least 5 years have passed since the last hearing date. Likewise, it cannot be a felony.

Fourteen or older at the time of the crime

If the minor was 14 or older, then there is no automatic expungement. Instead, the minor will have to petition for expungement the same as any adult, meaning convictions are not eligible.

DMV records take some time

If a minor’s case was reported to the Department of Motor Vehicles, the DMV will retain those records until the minor turns 29. Given Virginia’s uniquely harsh penalties for speeding and reckless driving, minors charged with these types of offenses may have to wait over 10 years to have those records expunged.

If you or someone you know needs to expunge a criminal record, or if you were charged with violations of Virginia traffic law, contact the experienced attorneys of Simms Showers, LLP in Leesburg to get the most accurate and up-to-date information and determine your rights today. We are eager to help you.

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