VA Expungement Eligibility Analysis Not Guilty, Nolle Prosequi, Dismissed

Transcription

1 VA Eligibility Analysis t Guilty, lle Prosequi, Dismissed Convicted on Original Charge? Acquitted? Charge Expunged! lle Prosequi? t Guilty by Reason of Insanity? Good Cause shown NOT to expunge? t Expunged Appeal to VA Supreme Court Convicted lesser included offense?* Plea: Guilty, llo Contendere, or Alford? First Time Offender Statute (Guilty/lo Contendere)? Misdemeanor AND First Offense? Showing of Manifest Injustice if not expunged? * If charge reduced to a lower offense without guilty / nolo contendere plea to the original charge, and without judicial finding of sufficient evidence to support conviction on the original charge, than expungement of original charge remains available. Dismissed after deferral + finding enough evidence to prove guilt? NOT ELIGIBLE to Petition for Dismissed w/o finding sufficient evidence to establish guilt?

2 1 Fairfax County Circuit Court Process: Acquittal, lle Prosequi, Otherwise Dismissed Initial consultation: Confirm eligibility Gather Evidence: Criminal history, court records, evidence of manifest injustice File Petition for with Fairfax Circuit Court Serve 1 copy of the Petition on the Commonwealth s Attorney Have fingerprints taken by law enforcement agency Attend Court Date File tice of Hearing with the Commonwealth s Attorney s Office Set hearing date (file expungement praecipe with court) State Police provides criminal history check with court. Law enforcement agency mails fingerprints to Virginia State Police If petition is granted, clerk of the court provides order to State Police State Police reviews order, directs removal of records from public access Confirm eligibility for expungement. NOT eligible if convicted, pled guilty or nollo contendere. Also may not be eligible if your charge was disposed of under a deferred adjudication program. 4 Court removes record from public access Court sends certified copies of final order to petitioner and counsel Commonwealth s Attorney may object. They have 21 days to do so after receipt of your petition. 9 NLT 3 days prior to hearing. 11 If denied, you may appeal. 12 From this point, it takes days for record to be removed from public access NOT LEGAL ADVICE! Simplified chart for Informational purposes only! NOT LEGAL ADVICE!

3 VA Eligibility Analysis Identity Theft Imposter arrested/charg ed under your name / ID? Imposter used your name/id without your consent? Petition Court for per Eligible for expungement ( innocent per ?)* Record Expunged Imposter used your name/id in violation of ?** Submit certified copy of expungement order to Attorney General * VA Code states as policy that expungement exists to protect innocent parties. If the true holder of the identity falsely used is culpable in the fraudulent use of the identity or in the underlying crime charged, a court may find grounds to deny expungement. te case law identified. ** VA Code : Identity theft; penalty; restitution; victim assistance AG provides access to identity theft info to Crim Jus. agencies AG issues Identity Theft Passport AG provides access to identity theft info to expunged party ***VA Code (H): MISTAKEN IDENTITY twithstanding any other provision of this section, when the charge is dismissed because the court finds that the person arrested or charged is not the person named in the summons, warrant, indictment or presentment, the court dismissing the charge shall, upon motion of the person improperly arrested or charged, enter an order requiring expungement of the police and court records relating to the charge. Such order shall contain a statement that the dismissal and expungement are ordered pursuant to this subsection and shall be accompanied by the complete set of the petitioner's fingerprints filed with his petition. Upon the entry of such order, it shall be treated as provided in subsection K hereof. AG sends record of Identity Theft Passport to DMV DMV notes /ID Theft Passport on Dvr Rcrd Abstract NOT ELIGIBLE to Petition for

4 VA - Minors Charge in Juvenile & Domestic Relations Court 19 years old? 5 years since last hearing on any juvenile case? JDRC Clerk required to report conviction to DMV*? Charge felony if committed by an adult? Destroy all records of charge on 2 January. Innocent, nollo prosequi, or otherwise dismissed? ** 29 years old? Retain records for period required by law*** Commonwealth shows Good Cause NOT to destroy records? * Courts to forward abstracts of records or furnish abstract data of conviction by electronic means in certain cases; records in office of Department; inspection; clerk's fee for reports. **Apply analysis pertinent to VA Code and *** Retention of case records; limitations on enforcement of judgments; extensions.

5 VA Absolute Pardon (I). twithstanding any other provision of this section, when a person has been granted an absolute pardon for the commission of a crime that he did not commit, he may file in the circuit court of the county or city in which the conviction occurred a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge and conviction, and the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of such order, it shall be treated as provided in subsection K hereof.