Can I Get My Criminal Charge Expunged in Virginia?
A criminal charge on your record can have permanent effects. From the loss of a job to the inability to become a foster parent, the consequences are broad and wide reaching. Many people who get criminal charges in Virginia wonder if they can have their record expunged. Expungement means that the charge is essentially erased from your criminal record and therefore legally it is as if the offense never happened.
Can I Get an Expungement?
Unfortunately, expungements are quite difficult to get and you have to meet very specific requirements to be eligible in the first place. In order to get an expungement, Virginia law requires that there be certain dispositions in the case.
The disposition in a case means the final outcome of the prosecution. In order to get an expungement, your case needed to end with an acquittal, with a finding of nolle prosequi which means that the Commonwealth declined to prosecute the crime, or that the charge was “otherwise dismissed.” Therefore, any plea of guilty, a dismissal after a deferred disposition, or a finding of guilt makes a person makes a person ineligible for an expungement. This is a huge barrier for most people. The Commonwealth of Virginia provides expungements only in the cases where it believes there was actual innocence, hence conviction, a plea bargain, or even a deferred disposition will disqualify someone from being able to get an expungement. Even with this strict standard, there are still other qualifications that a person needs to meet in order to be guaranteed an expungement.
There are other factors that will also affect whether or not someone is able to get an expungement. If you are trying to get an expungement, it will be helpful to your case if the original charge was a misdemeanor. This can get tricky because if the original charge was a felony, but you were found guilty of a lesser included offense that was a misdemeanor, you are only able to get an expungement of the felony charge if you can prove that it was not a plea bargain, but rather you were only guilty of the lesser included offense in the first place. It may sound like a minor distinction, but as discussed above, Virginia does not want to expunge anything that a person may have actually been guilty of, no matter what deals the prosecutor may have made to avoid a trial.
You will also have a better chance of getting the expungement granted if you have no other offenses on your record and if you present a good case to the judge. It is also much easier if the Commonwealth does not challenge your application for expungement.
Burden of Proof
It is up to the applicant to prove that he or she meets the requirements for an expungement. According to the case Eastlack v. Commonwealth, “In any proceeding for expungement, the petitioner has the burden of establishing the existence of one of those three criteria as a prerequisite to his right to seek expungement.” Therefore, it is up to you and your attorney to make the best case possible.
Reach Out to Us Today
If you meet the qualifications for expungement or are currently charged with a crime that you will want to get expunged from later, you should talk to a knowledgeable expungement attorney to help you proceed in a way to preserve your eligibility for expungement. Our experienced expungement attorneys at Simms Showers, LLP in Leesburg, Virginia helps clients in Loudoun County, Fairfax County and throughout Northern Virginia and can help you to get your criminal record cleaned up.