Sealing and Expunging Criminal Records in Virginia

The criminal justice system in Virginia is systematic. Law enforcement arrests individuals accused of a crime, and then the state tries the defendant in court. If found guilty, offenders face the risk of a jail sentence or applicable punishment. After serving a sentence, it is not uncommon for a defendant to seek the sealing or expunction of criminal records. For these individuals and their legal representatives, the Virginia Judiciary provides systematic instructions and eligibility criteria. If successful, the criminal records cease to exist in the public domain, and only a few government agencies may have access to such documents.

The Difference Between Sealing and Expunging Criminal Records

The terms "records sealing" and "expungement" are used interchangeably in Virginia and refer to the same process. The only difference is the nature of access to the record. Section § 19.2–392.2 of the Code of Virginia outlines the state’s laws regarding the expungement of criminal records. Granting a petition for expunction directs all record custodians, such as the court, police, and related agencies, to destroy all existing information on the individual’s crime in the public domain.

However, a conviction record will still be available to the court and authorized agencies only. Bear in mind that the court will only grant an expunction under certain circumstances, such as when no conviction has occurred or innocence is established after a wrongful conviction.

Similarly, according to the Virginia Administrative Code, 6VAC20 120–80, sealing a criminal record removes it from the public domain. However, it is not tantamount to the physical destruction of the record by the custodian. Consequently, individuals and private entities armed with a court order, as well as government agencies, may retrieve such records. The record custodian naturally has access to sealed documents.

Eligibility Requirements to Expunge and Seal a Criminal Record in Virginia

The law is unequivocal on the eligibility requirements for sealing or expunging criminal records within Virginia’s jurisdiction. Interested individuals must meet two requirements:

• The criminal offense must be an offense under Title 18.2 of the Code of Virginia; and
• The individual must possess an order of nolle prosequi, a finding of not guilty, or a dismissal of the case.

However, meeting these requirements does not automatically seal or expunge the criminal record. The presiding judge will weigh several factors before granting the petition, including whether:

• The individual has prior convictions of felony offenses or misdemeanors;
• The continued existence of the record may constitute injustice.
• There is good cause against granting the expungement.

How to Expunge and Seal a Criminal Record in Virginia

If eligible, expunging or sealing a criminal record in Virginia is a straightforward process, as outlined in Section 19.2–392.2. While it is prudent to employ a qualified attorney’s services, who will examine the merits of the case before embarking on the process, affected persons may opt to handle the process on their own. Applicants must be meticulous about the process to prevent a denial. Likewise, patience is paramount as the process may take several weeks to months. With these in mind, sealing or expunging a criminal record goes as follows:

First, affected persons obtain certified copies of the charge’s final disposition(s). Applicants then file a petition for expungement or sealing in the Circuit Court that filed the case. This includes downloading, completing, and notarising the petition form. Petitions typically include the individual’s personal information, case number, and a copy of the warrant, summons, or indictment. Instead of this, the individual may provide the name of the arresting agency and the arrest date. The individual must also pay the applicable filing fee to the Clerk of Court.

Next, the individual must serve a copy of the petition to the Commonwealth’s Attorney in the city or county where the case was tried. Notifying the Commonwealth is essential and gives the state a twenty-one-day waiting period to object to the petition.

The individual must then proceed to obtain a fingerprint card from the local law enforcement agency. Attach a copy of the petition with the fingerprint card, and send it to the Central Criminal Records Exchange (CCRE) in a self-addressed stamped envelope. There, officers will perform a criminal history records check and forward the petition, the background check information, and other documents to the local circuit court.

After this, the individual must attend the scheduled hearing with a judge in the local Circuit Court. During the hearing, the judge will determine the merit of the petition based on the information provided and grant or deny it. The Central Criminal Records Exchange is located at:

Virginia State Police
Central Criminal Records Exchange
P.O. Box 85076
Richmond, VA 23261–5076
Phone: (804) 674–6723

What Crimes Can Be Sealed or Expunged in Virginia?

Virginia has stringent requirements regarding the nature of crimes that can be sealed or expunged. In addition to the requirement above, the law gives special consideration to petitions from individuals who were victims of identity theft. Individuals affected by identity theft may initiate challenging the record at the local sheriff's department or state police headquarters.

Juvenile crimes are generally eligible for expunction. However, courts may deny a petition to seal or expunge convictions resulting from plea bargains or nolo contendere. Virginia does not grant petitions to seal or expunge guilty convictions of misdemeanors.

Note: In October 2020, the Virginia legislature passed a bill to allow for the automatic sealing of certain criminal convictions. However, the automation only counts eight years after the offender completes the sentence.

Can a Felony Be Expunged in Virginia?

A felony conviction record in Virginia limits the opportunities for individuals in travel, education, employment, professional licensing, and housing. Non-conviction records in which the case was dismissed, the individual was acquitted, or “no-billed” by the grand jury are eligible for expungement. Moreover, under Virginia Code § 19.2-392.2, certain felony convictions may be expunged if the offenders meet the eligibility conditions.

Expungement grants offenders a second chance, releasing them from the restrictions resulting from the offence. However, not all felony convictions may be expunged. Convictions for grievous crimes cannot be expunged under any circumstances in Virginia. These include murder, automobile homicide, felony DUI, sex offences that led to offender registration, and child abuse that led to offender registration.

Some conditions to be eligible for expungement include:

• The individual must be convicted of a low-grade felony
• The individual has no previous conviction in the case of Class 1 or Class 2 felonies
• The individual has had no conviction in the last 20 years for Class 3 or Class 4 felonies
• The individual does not have any pending charges or other felony convictions

To initiate the expungement process, eligible individuals must petition the court where they were convicted and serve a copy of the petition to the prosecutor. If the prosecutor objects, the court would schedule a hearing. The individual must provide sufficient evidence that they have rehabilitated, and there is reasonable cause to grant the petition. Such evidence includes, for instance, documents showing admission, employment, or accommodation denial due to the record. The judge is at liberty to apply discretion in deciding whether to grant the petition or otherwise.

Expungement petitions in Virginia typically contain the following information:

• The name of the applicant
• Date of birth
• Social Security Number
• Charges to be expunged
• Case disposition
• Court of conviction

Do Sealed Records Show up In Virginia Background Checks?

No, they do not. However, individuals and entities who possess a court order may be able to access the records for criminal background checks. Nevertheless, if law enforcement indicts the individual for a new crime, the court will have access to the expunged data. However, background check agencies and prospective employers that conduct background checks cannot access expunged records. Also, in most cases, the individual does not have to mention the existence of an expunged record.

Who Can See Sealed Criminal Records in Virginia?

Generally, records custodians can see sealed criminal records in Virginia. Other entities and even government agencies must obtain a court order to access sealed criminal records. Note that the court retains access to sealed criminal records in determining cases of recidivism.

How Can I Get My Record Expunged for Free in Virginia?

The overall cost of the expungement process in Virginia depends on the charges to be expunged and whether the applicant qualifies for fee waivers. Filing and service fees typically total about $120. Depending on the location, fingerprinting at the local law enforcement agencies may involve an administrative fee of $50. Some applicants may require the services of an attorney. The cost of an attorney could range from $700 to $2,000 or more, depending on the complexity of the case. Applicants with financial constraints may be eligible for waivers from the court. They must fill out and submit a financial disclosure document or affidavit of indigency.

How to Obtain Sealed Records in Virginia

Generally, the record custodians may only release sealed records to the individuals named on the record. However, as stated in the Virginia Administrative Code, 6VAC20 120–80, government agencies, individuals, and private entities armed with a court order may obtain sealed records. To get a court order, the individual must submit a petition to the Clerk of Courts in the jurisdiction where the case took place. The petition must demonstrate good cause for the presiding judge to grant the court order. In doing this, the judge will weigh the individual’s privacy against the petition.

Records that are considered public may be accessible from some third-party websites. Operating independently of any federal, state, or local agency, such websites may simplify the search process as they are not limited by geographic location. Additionally, third-party sites often feature search engines that allow users to filter specific or multiple records. To use third-party or government websites, interested parties may need to provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that the person resides in or was accused in

However, third-party sites are independent of government sources and are not sponsored by these government agencies. Because of this, record availability cannot be guaranteed.