Dismissed, Nolle Prossed, Pardoned Or Writ of Actual Innocence
The expungement process applies to charges that have been dismissed or nolle prossed (dismissed without prejudice but can be refiled within 12 months). If you were convicted of an offense, even if it was a VERY long time ago, this process does not apply. You can, however, use a separate process and request a pardon from the Governor. If the Governor grants you an absolute pardon, then you have your record expunged. If you receive a writ of actual innocence pursuant to Virginia Code Section 19.2-992.2, your record also can be expunged.
Procedure Is Statutory
Virginia Code Section 19.2-392.2 sets forth the expungement process. The process is statutory so all of the provisions must be followed.
Petition For Expungement
A Petition For Expungement must be filed in the Circuit Court with copies of the warrants/indictments that were dismissed included with your Petition. If you were granted an absolute pardon by the Governor, this must be attached. The Petition then will be served on the Commonwealth's Attorney who will file an Answer, either agreeing to or objecting to the request for expungement. (If there is an agreement, an agreed Order will be signed by all parties and sent to the court.) Local Law enforcement also must be served with a copy of the Petition to obtain a fingerprint card. They will send the card to Central Criminal Records Exchange which will forward your criminal record to the court. If there is an absolute pardon, law enforcrment does not need to be served.
If the Commonwealth's Attorney does not agree to the expungement, a hearing must be held before the court.
Copies of the Expungement Order are sent to the Department of State Police to be disseminated to eliminate all court and police records of any arrest, processing or criminal charge.
Additional resources provided by the author
Mary Commander has been practicing law in Norfolk, VA for 30 years.