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Question about Appeal of an expungement denial for a dismissed DWI

Herndon, VA |

I had a DWI dismissed by the court because the blood test showed no alcohol or drugs in my system. I filed for an expungement which was denied because about 8 years later I did get my first conviction for a DUI. It seems that the fact that I was Innocent of the dismissed DWI should allow for an expungement but the judge said because of my current DUI (first offense) he denied it. Does this seem like it could be worth appealing? The way my record looks now it appears that I have an alcohol problem since there is this arrest prior to my first DUI. It will cause serious problems for employment . And if yes, where can I find info on how to appeal. Thank you!

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Attorney answers 4

Best Answer

you should contact an experienced criminal attorney NOW - the court has no discretion to deny an expungement if you meet the criteria of the statute - Va. Code Section19.2-392.2:
"F. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement.


From what you write the court should have granted your motion. Under the law, the court must expunge a misdemeanor acquittal where one had no prior criminal record.

The controlling statute is 19.2-392.2.

Hire a lawyer quickly; there is a firm deadline for appealing.


I agree with Mr. Oblon, but I think your question is missing some key facts. If you have NO PRIOR CRIMINAL RECORD, then there is a strong presumption, but you don't exactly say that. You also don't say whether you have an attorney already. As it says in the statute, a petitioner is ENTITLED to an expungement for a dismissed misdemeanor and no prior criminal record, unless the commonwealth shows good cause to the contrary. (To the contrary of What? The law doesn't say!).

This sounds like a good example of what can go wrong when folks try to go to Court without an attorney, trying to follow instructions that they find on the internet. If you have an attorney, you should give them a call ASAP to note the appeal. If not, call Mr. Oblon!!

David A Oblon

David A Oblon


Mr. McGlone is too generous. You should consider calling him, too.



I don't have an attorney I didn't have a criminal record prior to the arrest for DWI that was dismissed (it was dismissed because the blood test showed no alcohol or narcotics). However this year I did get my first DUI for sleeping on the side of the road which as you know is a DUI. I received ASAP, and a restricted license for a year and the mandatory interlocking device. So does that mean I have a criminal record? And therefore it is discretionary as to whether the Judge wants to grant the expungement or not?

David A Oblon

David A Oblon


As I read the statute, the expungement is mandatory. However, at this point, you need an appeal. Pick a lawyer ASAP. There are imminent deadlines.


Hire an attorney if you do not have one, if you have one then discuss with him or her an appeal and the requirements of that process.

Please remember that if you find an answer particularly helpful, please mark it as helpful or "best answer" so that the attorneys who volunteer their time to answer these questions have feedback. This answer is only for informational purposes, is not legal advice, and does not create an attorney-client relationship. Every case is different and must be judged on its own unique facts.

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