Virginia Expungement Update (June 2023).

If you’ve been paying attention to Virginia Expungement Law and the recent movement in the General Assembly, you’re probably aware that there are significant improvements coming to our expungement framework here in Virginia.  However, most of the change has a delayed effective date until July 1, 2025.  With that said, this past year, there were important cases handed down that are important for you to consider.  

Do you have to prove “actual manifest injustice?”

One issue that presents itself in many expungement petitions is the concept of “manifest injustice.” Under Virginia Va Code 19.2-392.2, the statute states that an expungement “shall” be granted if a petitioner demonstrates that a denial “causes or may cause circumstances which constitute a manifest injustice.”  While Virginia’s expungement statute does not define “manifest injustice,” traditionally, Courts look to what effect particular charges have on one’s employment and educational opportunities, and other opportunities that they may lose out on due to charges for which they weren’t convicted.

In Obregon v. Commonwealth, 75 Va. App. 582, 878 S.E.2d 418 (2022), the Court of Appeals confirmed that, assuming a person’s particular charge is eligible for expungement, they need not prove that “actual” manifest injustice has occurred, but rather that it “may” occur. 

In Obregon, the trial court denied an expungement petition seeking to expunge three misdemeanor charges that were dismissed, despite the petitioner having multiple other charges on her record.  To support her petition, she testified that she was attending college, working part time, and desired to study behavioral psychology in graduate school.  She believed that disclosure of the criminal charges would negatively affect her career because her field required background checks.  She further testified that prior employers had already withdrawn offers of employment after conducting a background check.  

The Commonwealth did not contest her testimony. Rather, it argued that because she had a prior criminal record, the charges she sought to be expunged would be of little consequence to her future. Stated another way, her record was already tarnished.  Ultimately the trial court ruled that she failed to prove actual manifest injustice.

In reversing the trial court’s decision, the Court of Appeals pointed out that the trial court was wrong to require actual manifest injustice.  Indeed, Va Code 19.2.392.2 (F) directs that an expungement “shall” be granted if the petitioner demonstrates that a denial “causes or may cause circumstances which constitute a manifest injustice.”

But, I was never supposed to be charged in the first place?

Like “manifest injustice”, Virginia’s expungement statute does not define the meaning of “otherwise dismissed.” This too has led to a lot of confusion in Virginia Expungement Law. From a basic standpoint, Virginia Code 19.2-392.2 allows for expungement when: 1) a petitioner is acquitted, 2) their charge is nolle prossed, or 3) their charge is “otherwise dismissed.” 

Prior cases have sought to clarify the meaning of, “otherwise dismissed” See Necaise v. Commonwealth, 281 Va. 666 (2011)(no expungement for lesser-included charges); Dressner v. Commonwealth, 285 Va. 1 (2013)(expungement permitted when a charge is amended to a “completely separate and unrelated charge.) Indeed, in Dressner, the Supreme Court permitted the expungement of a marijuana charge when it was later amended to reckless driving, because the amended charge was completely separate from the initial one.

Recently, however, the Virginia Supreme Court handed down a (at least in our minds) very surprising opinion in Forness v. Commonwealth, 882 S.E.2d 201, 202 (Va. 2023). There, the Supreme Court upheld the denial of an expungement of a charge for which the petitioner should have never received in the first place. The petitioner was charged with a felony DUI, which required a predicate offense for him to qualify for such a charge.  As it turns out, the petitioner did not have the predicate offense on his record, and even the Commonwealth agreed the charge was wrongfully issued.

Despite this, the Virginia Supreme Court denied the expungement, finding that a charge is not “otherwise dismissed” if the petitioner was ultimately convicted of a “lesser-included” offense. Because the defendant’s charge was amended from a felony DUI to a DUI second offense, he was therefore barred from having the felony DUI expunged. 

In a powerful dissent, Justice Thomas Mann questioned the majority’s logic in its holding:

Forness was completely innocent of the charge for which he was arrested, as there is no question that he has never been convicted of felony DWI. Now he must shoulder the burden of explaining away this charge on his permanent criminal record to potential employers or law enforcement because we do not grant him the relief he requests.

Because both parties below admit that Forness could not have been convicted of the crime with which he was charged, and the lesser included offense analysis applied by the majority defeats the plain meaning of the expungement statute, I respectfully dissent. Simply, we should not allow what amounts to a bureaucratic paperwork error at the outset of this matter to damage a man who already bears the weight of his other criminal offenses.

Let’s add a little more confusion to “otherwise dismissed.”

Another recent expungement case is Williams v. Commonwealth, 885 SE2d 457 (2023), which also considers the meaning of, “otherwise dismissed.”

In Williams, the trial court denied the petitioner’s expungement when he was initially charged with accessory after the fact of homicide, but ultimately plead guilty to an amended charge of obstruction of justice. In denying the petition, the trial court reasoned that “amending an indictment from accessory to a charge of the same ‘nature or character’ – obstruction of justice – does not render (Williams) an “innocent citizen, falsely accused.”  

In response the Virginia Supreme Court reversed the Williams trial court and remanded the case back for additional consideration. In its remand, the Va .Supreme Court provided additional guidance. Indeed, it provided that the trial court shouldn’t just be mechanical in its analysis: 

“Rather, a court should 1) compare the conceptual similarities and differences between the original and the amended charge and 2) examine whether the two charges share a common nucleus of operative facts.  For example, a charge of robbery that is amended to a charge of grand larceny from the person is not “completely separate and unrelated” if both originate from the same background facts.”

What’s also interesting about the William’s opinion is that, in a concurring opinion, Justice Thomas Mann explicitly asked the General Assembly to clarify the meaning of “otherwise dismissed.”   While we are not hopeful the Virginia General Assembly will heed this request, we do appreciate Justice Mann’s request as we also believe such guidance is warranted.

Still have questions?

Make sure to check out our Personal Injury & Criminal Defense Practice Pages where we’ve answered many other questions you likely have.  James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews.  Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.