The Law Office of Wilfred W. Yeargan can help you file a Petition for Expungement of your criminal or traffic charge. Virginia Code §19.2-392.2 specifies the conditions when expungement may be granted. Expungement of a criminal or traffic offense removes the arrest existing on the defendant's record after a criminal or traffic charge is finalized. The Petition for Expungement is filed in the Circuit Court of the Virginia county where the underlying offense was heard.
When granted by the Court, the arrest is removed from the Central Criminal Records Exchange, a division of the Virginia State Police. The arrest is also removed from the Virginia Court Case Information database, and access to the information by the general public. The court record is sealed and removed from public review.
When Can a Petition for Expungement Be Granted?
A Petition for Expungement can be successfully filed when a criminal or traffic charge is nolle prosequi (a form of dismissal without prejudice), dismissed, or a defendant was found not guilty (commonly referred to as acquittal). It is also available when the case was dismissed by an agreement called Accord and Satisfaction.
A Petition for Expungement may be filed at any point after the criminal charge is finalized at trial or hearing. It is advisable to obtain a certified copy of the Warrant of Arrest or Summons immediately after the disposition so you may have it on hand later to prepare the petition. Court records in the General District Court are destroyed after ten years from the date of the court outcome.
Expungement is available as a remedy when a person's name or identification is stolen and used by someone else arrested for criminal activity. An individual is not required to pay court filing fees for the expungement petition in this situation. The expungement petition needs to fully describe the circumstances of the identity theft and the criminal charge that was filed.
A Petition for Expungement cannot be successfully filed when a defendant was convicted of a criminal or traffic charge. Criminal convictions are permanent in Virginia. Expungement is also not available when the charge was deferred for dismissal with a plea of guilty on terms and conditions.
However, after the Commonwealth of Virginia v. Dressner case in 2013, it is possible to expunge an arrest when the Defendant pled guilty to a different crime that was not a lesser included offense of the original charge. For example, if a person is originally charged with Driving Under the Influence of Alcohol but pleads guilty to the amended charge of Reckless Driving, the DUI arrest may be expunged from the criminal record. This is because the Reckless Driving conviction is not a lesser included offense of the original DUI charge. It does not contain elements similar to the original offense.
Is Expungement A Civil or Criminal Action?
The Petition for Expungement is a civil matter. A proper pleading is drafted and served on the Commonwealth Attorney, who is required to file an answer within 21 days. Certified court copies of the Warrant of Arrest or Virginia Uniform Summons must be attached to the petition. Typically, the client must be fingerprinted at the time a Petition for Expungement is filed. Attorney Yeargan personally escorts the client to the correct fingerprinting location and provides the needed documents for the court staff. The fingerprints are sent to the Virginia State Police, who run a criminal record check and return a sealed report to the Clerk's Office for the hearing. The fingerprints are returned to the Petitioner at the conclusion of the case.
Getting Fingerprinted During the COVID-19 Emergency
During the COVID-19 pandemic, it can be challenging to find a fingerprint location that is open. The law office researched this problem and discovered that the best location to be fingerprinted is at the Virginia State Police office at 7700 Midlothian Turnpike, North Chesterfield, VA 23235. The telephone number is 804-674-2000. You may be fingerprinted without an appointment during regular business hours (9 a.m. to 4 p.m.). The advantage of processing the fingerprints at this location is that this is the office where the fingerprint report is produced and sent to the courts. The fingerprints do not need to be mailed anywhere (potentially to be lost). Bring two forms of Identification.
Scheduling a Hearing on Your Expungement Petition
A hearing with a Circuit Court judge must be scheduled for entry of the Expungement Order. The lawyer will file a Notice of Hearing with the Clerk to schedule this hearing. The availability of hearing dates differs in each county. Prince William County, for example, holds expungement hearings only on Friday mornings with two weeks notice. Fairfax County, on the other hand, schedules expungement hearings Monday through Thursdays at 10 a.m. with three business days notice. It is important to retain an attorney familiar with the paperwork and filing procedures in the county you file the Petition.
Persons with no criminal record charged with a misdemeanor or civil violation that was resolved in their favor are "entitled" to the expungement unless the prosecutor can show "good cause" why it should not be granted. In other cases, the petitioner may need to prove that the continued existence and possible dissemination of the court records "may cause circumstances which constitute a manifest injustice" to him or her. Common examples of manifest injustice to a petitioner's life are damage to employment applications, immigration status, or security clearances.
In most cases, the Commonwealth Attorney will sign an agreed order at the hearing. This allows the Expungement Order to be finalized so that testimony and evidence does not need to be presented. The law office encourages clients to be present for this hearing. However, Attorney Yeargan often appears without the client to enter the Order if the client cannot attend or the Commonwealth Attorney supports the Petition. Once an Order is signed by the judge, the arrest will be removed from the criminal record history of the petitioner.
After the Expungement Hearing is Finalized - What Happens Next?
As of 2017, the filing fees for the expungement petition ($86) are refunded to the petitioner by the Clerk of Court when the petition is granted. It may take a couple of months to get this refund check.
Once the Expungement Order is entered by the judge hearing the case, it is sent down to Richmond to be processed by the State Police. A certified copy of the Order of Expungement and the original fingerprint card are sent to the client. The State Police staff will physically remove the arrest in their criminal records and verify that all references to the case are removed by the Courts in their Court Case Information database. A final letter will be mailed by the State Police to the lawyer handling the case certifying that the expungement is completed. A copy of this letter is provided to the client when received. The refund check for the filing fees is also returned to the client.
Where Can I Find Information About Expungements in My Virginia County?
Please review the following excellent resources on Expungements in Fairfax County, Prince William County, and Loudoun County:
Contact a Fairfax County and Prince William County Criminal Defense Lawyer Today - Expungement Petition Attorney With 22 Years of Trial Experience
If you have questions about the process of expungement, please contact Attorney Yeargan by calling directly or sending a message online. He will be happy to answer your inquiries and schedule a free consultation. Attorney Yeargan has successfully handled many expungements in Loudoun County, Fairfax County, Arlington County, the City of Alexandria, Prince William County, Westmoreland County, and other locations throughout the state. He can answer any questions you have and start the process in a short period of time. The law office can help you get the petition filed and processed in an expeditious manner so that your criminal record is protected for employment, security clearances, and immigration purposes.