If you know anything about Virginia Expungements, you know that the ability to obtain an expungement of charges is narrow. The current process of expungement requires you to file a petition under Va Code Section 19.2-392.2, which allows for the expungement of charges under very limited circumstances:
- An acquittal;
- A Nolle Pross (when the government voluntarily drops a case); or
- The charge was “otherwise dismissed.” (Note: through case law, otherwise dismissed is limited).
In 2025, our new expungement statutes will come into effect that will expand your ability to clean your record.
In this article, we’ll highlight some of the most important changes. To be clear, these won’t be in effect until July 2025. And with every new statute, there will be unforeseen issues that arise when the laws play out in real life. So, make sure to follow up on our social media accounts and newsletters for updates.
The new laws change the “Statement of Policy” for Virginia Expungements.
Traditionally, Virginia expungements are meant to protect the “innocent.” However, Va Code Section 19.2-392.1 (Statement of Policy) now reflects that expungements are also meant to provide relief for those “who have demonstrated rehabilitation.” This means the statutes explicitly contemplate people who have been convicted of charges but need help.
Because criminal records often affect employment, Va Code Section 19.2-392.4 (Prohibited Practices by Employers) now protects job applicants from having to disclose not only “criminal charges” but also “convictions or civil offenses” that have been sealed or expunged.
The new laws distinguish the “Sealing” of records from the “Expungement” of records.
Under Va Code 19.2-392.5, the legislature has defined the “sealing” of records. Under the statute, sealed records are closed to the public and agencies, which can occur by court order or automatic operation of law.
However, under Va Code Section 19.2-392.13, when records are sealed, they can be accessed for several reasons to include:
- Criminal background checks for purchase or possession of firearms
- Fingerprint comparisons
- Virginia Sentencing Commission
- Employment background checks for law enforcement
- Working with emergency medical services
- Working with DFS
- National security
- Collection of court costs and fines
- Publishing of court decisions
When records are “expunged” they can only be accessed by prosecutors for active criminal investigations. (See Va Code 19.2-392.3).
Given this, sealed records are comparatively more accessible than expunged records. Also, if you fail to disclose sealed records that you are required to disclose, knowingly or willfully, such failure shall be grounds for perjury.
Va Code 19.2-392.3 also provides that sealed records may be admissible in custody cases, but not in criminal sentencings or bond hearings. What’s more, sealed records shall not constitute Barrier Crimes.
So, how will the new expungement rules work?
Clearly, the purpose of these changes is to provide people like you with more flexibility in cleaning up your record. These changes do so in two primary ways. First, in some instances, you can get a record sealed automatically, without the need to file a petition with the court. Second, it also expands what charges are sealable and/or expungeable.
To be clear, these changes are complex. When you’re considering whether your charge is sealable, first focus on the specific charge you’re trying to clean up. And then you’ll need to consider your criminal record otherwise. With that said, here’s what the new laws will do:
Scenario 1: If you had an old misdemeanor charge that resulted in an acquittal, nolle pross, or dismissal, it may be automatically sealed if you have no other criminal record.
Under Va Code Section 19.2-392.11 an old misdemeanor charge that resulted in an acquittal or was nolle prossed or dismissed will be automatically expunged if you’ve had no other criminal convictions. For your misdemeanor charge to qualify for automatic expungement, you must have also avoided any other criminal charges for three years.
Also, note that deferred findings do not qualify for “dismissals” here. For purposes of this article, a deferred finding is when a court has found facts sufficient to find you guilty of your charge, but withheld convicting you based upon certain conditions. And ultimately your charge was dismissed given your compliance with those conditions.
Scenario 2: Even if you were convicted of a charge, it still may be eligible for automatic sealing. But these are limited to specific charges and under certain conditions.
Under Va Code 19.2-392.6, your may be eligible for automatic sealing if you were convicted of one of the following charges:
- Petit Larceny
- Concealment
- Trespass
- Instigating Trespass
- Possession of Marijuana or misdemeanor intent to distribute marijuana
- Disorderly conduct
However, to qualify here, you must not have received any new convictions within the past 7 years.
Also, for the conviction you hope to be sealed, you cannot have been convicted of (or received a deferred finding for) an ineligible charge on the same date.
If your charge doesn’t qualify here, you can still seek sealing under Va Code 19.2-392.12.
Scenario 3: If you’re facing a new charge (be it a misdemeanor or felony), you may be able to have it automatically sealed if you get acquitted, or the charge is nolle prossed, or otherwise dismissed.
If you’re facing a new misdemeanor charge, Under Va Code 19.2-392.8, it is eligible for automatic sealing if it results in:
- Acquittal;
- Nolle Pross;
- Otherwise dismissed (not include deferred findings)
However, it will not be automatically expunged by the court if the Commonwealth raises one of the following issues:
- The charge was ancillary to another charge that resulted in a conviction or deferred finding;
- The outcome of your charge was the result of a plea agreement;
- Another charge arising out of the same facts still pending;
- The Commonwealth intends to reinstitute your charge or other charges arising out of the same facts within 3 months;
- Good cause exists, established by preponderance of evidence by the Commonwealth that automatic expungement should not happen;
- You object to the automatic expungement.
If you’re facing a felony charge that results in an acquittal or it is nolle prossed or dismissed, you can orally request that it be automatically sealed. If the Commonwealth agrees, it will be automatically sealed.
If the court denies your automatic expungement, you can still seek an expungement by petition under the “old” rules of Va Code 19.2-392.2.
Also, if a charge is automatically sealed contrary to law, the sealing can be voided for up to 2 years later.
Scenario 4: Even if your charge is not eligible for automatic sealing, you may still seek relief by filing a petition.
The new laws provide an expanded ability to get charges sealed by petition. This is considered in Va Code Section 19.2-392.12. Here’s how it works:
The following convictions or deferred findings are simply not sealable:
- Involuntary manslaughter
- Maiming
- DUI
- Domestic Violence
If not involving the above, convictions or deferred findings for the following charges are sealable based upon further conditions:
- Misdemeanors
- Class 5/6 felony
- Grand larceny
Those conditions are:
- You’ve never been convicted of a Class 1 or 2 felony;
- You’ve not been convicted of a Class 3 or 4 felony within the last 20 years; and
- You’ve not been convicted of any other felony within the last 10 years.
There are also other conditions:
- You may not request sealing for multiple charges or convictions that arouse out of different transactions/occurrences. (However, Va Code 19.2-392.12(c) appears to allow for filing to expunge mulitple charges/convictions arising out of the same transaction.)
- You may only have 2 petitions granted per this section two times. However, petitions for drug paraphernalia and possession of alcohol don’t count toward this two-time limit.
Unless the Commonwealth agrees with your petition, the court will hold a hearing. The court will be required to seal your record if:
- Your petition is for an eligible misdemeanor, and you have had no new convictions for 7 years.
- Your petition is for an eligible felony, and you have had no new convictions for 10 years;
- If your charge involved use of drugs/alcohol, you have demonstrated rehabilitation;
- You have not had two prior convictions or deferred findings sealed; and
- The continued existence of your charge may constitute “manifest injustice.”
Even if the Sealing Petition is granted, the Petitioner can still seek an Expungement under Va Code 19.2-392.2.
The new statutes also protect you from inaccurate records.
In addition to the above, the new laws will give you recourse for when your criminal record is being inaccurately reported. Under Va Code 19.2-392.16, the new statutes provide people protections against “business screening services” that incorrectly report criminal records. The statutes require that any such business enter into a contract with the Virginia State Police to be notified of sealing an expungement records, protect sealed and expunged records as well as an avenue for people affected by inaccurate record report to seek recourse through the business, itself, and the courts.
Traffic infractions are considered as well.
Under Va Code 19.2-392.17, any traffic offense shall be deemed sealed after 11 years.
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. Abrenio Law is a Personal Injury & Criminal Defense Law Firm representing individuals in Northern Virginia and throughout the Commonwealth. You can learn more about Abrenio Law by visiting our About Us page. You can also read about some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.