In Virginia, if a defendant is charged but not convicted, he may be eligible for an “expungement.” An expungement will remove the charge from his record altogether and the clerk’s office will remove all documentation from the public records. If you have been acquitted and want to ensure that the charge does not show up on a criminal background check, you should consider contacting a knowledgeable lawyer about an expungement.
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Who is Eligible?
Pursuant to Virginia Code § 19.2-392.2, a defendant is eligible for expungement if:
He is acquitted, or a nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § Virginia Code § 19.2-151.
There is no statue of limitations for having a charge expunged. A defendant can file immediately after an acquittal, or it can be 30 years later.
Note that a defendant who was convicted is not eligible for expungement, even after a number of years have passed. Similarly, in most cases a defendant who has had his charge dismissed pursuant to a first offender program (as is available for certain alcohol and marijuana charges) is not eligible to have the charge expunged.
How To Begin an Expungement
To request an expungement, the defendant or his lawyer must file a legal petition in the appropriate state circuit court. The requirements for the petition are contained in Virginia Code § 19.2-392.2, and include a copy of the warrant or indictment, the date of arrest, the name of the arresting agency, the petitioner’s date of birth, and the full name used by the petitioner at the time of arrest. The petitioner must additionally provide a set of fingerprints so that a law enforcement agency can run a current check with the CCRE (Central Criminal Records Exchange). The petition and all attachments must be provided to the Commonwealth’s Attorney.
Once the Court has received a petition that complies with the terms of Virginia Code § 19.2-392.2, it will schedule a hearing. The defendant can call witnesses and present evidence, as can the Commonwealth’s Attorney. If the defendant testifies, he can be cross-examined by the prosecutor. At the conclusion of the evidence, if the court finds that “the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner,” it will enter an order expunging the records. If it does not make this finding, it will deny the petition. However, according to Virginia Code § 19.2-392.2, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown by the Commonwealth, to an expungement.
If you would like to clear your record, call us today at (434) 972-9600 or contact us online.
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We are located in Charlottesville, but our lawyers handle cases in Charlottesville, Albemarle County, Greene County, Fluvanna County, Louisa County, Nelson County, Madison County, Orange County, Roanoke, Harrisonburg, Staunton, Waynesboro, Augusta County, and across Virginia.
Davidson & Kitzmann, PLC
211 E High St
Charlottesville, VA 22902
Phone: (434) 972-9600
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