Sealing and Expunging Criminal Records in Virginia
The criminal justice system in Virginia is systematic. Law enforcement arrests individuals accused of a crime. Then, the state tries the defendant in court, and if found guilty, the judge will impose a 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 can access the records.
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 embodies the state’s laws on the expunction 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 no conviction or innocence 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, and government agencies, may retrieve such records. The record custodian naturally has access to sealed records.
Records that are considered public may be accessible from some third-party websites. These websites often make searching simpler, as they are not limited by geographic location, and search engines on these sites may help when starting a search for a specific or multiple records. To begin using such a search engine on a third-party or government website, interested parties usually must 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 person resides in or was accused in.
Third-party sites are independent from government sources, and are not sponsored by these government agencies. Because of this, record availability on third-party sites may vary.
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 is not equal to an automatic sealing or expungement of 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 straightforward, 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, interested individuals can also follow a DIY process. Also, bear in mind that the individual must be meticulous about the process to prevent a denial. Likewise, patience is paramount as the process can take several weeks to months. With these in mind, sealing or expunging a criminal record goes as follows:
First, the interested individual must obtain certified copies of the charge’s final disposition (s). The individual must then file a petition for expungement or sealing in the Circuit Court that filed the case. Download, complete, and notarise the petition form. The petition must include the individual’s personal information, case number, 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 and 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 department or state police headquarters.
Juvenile crimes are eligible for expunction, but the court will typically 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.
It is noteworthy that 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.
Do Sealed Records Show up In Virginia Background Checks?
No, they do not. Only individuals and entities who possess a court order can 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?
Only the record custodian 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 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 with 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.