In Virginia, a criminal arrest or charge stays on an individual’s record permanently, even without a subsequent conviction. From denied opportunities for education, employment and housing to the inability to pass a security clearance investigation, even a “mere” charge of a crime may have serious consequences. 

However, in certain circumstances state law allows individuals charged but not convicted of a crime to petition for expungement of their criminal record. Under expungement, the court seals police and court records so that a charge or arrest will no longer appear on background checks. 

When is an individual eligible for expungement?

Under the Code of Virginia § 19.2-392.2, an adult individual may only be eligible for record expungement if an arrest or charge resulted in dismissal, acquittal, abandonment or if the charge was a case of mistaken or fraudulent identity. 

However, Virginia is one of ten U.S. states that do not currently offer any form of expungement for adult convictions, including convictions following a trial, plea bargain or plea of no contest. 

How do individuals receive expungement?

Eligible individuals may petition the court and receive a hearing. During this hearing, the petitioner and his or her attorney must demonstrate to the court that there is good cause for removing the charge and/or that the charge constitutes a “manifest injustice”: for instance, if the charge poses a significant barrier to employment or threatens the petitioner’s reputation. 

If the petitioner does not have a previous criminal record and the charge was a misdemeanor or civil offense, he or she may be more likely to receive an expungement. When there are prior arrests or charges or if the charge was a felony, the petitioner will need to make a strong case that there is good cause for removing the record from public view.