Do you currently have a pending drug charge you would like dismissed and expunged?

Virginia Code Section 18.2-251 often referred to as the “First Offender Program” or “251 Program,” allows certain first-time drug offenders (including felony offenses) to undergo treatment and education instead of facing traditional criminal penalties. Here are the key qualifications for the First Offender Drug statute in Virginia:

• First-Time Offender Status: To be eligible for the program, the individual must be a first-time drug offender and charged with a “simple possession” offense. Prior drug-related convictions prevent participation in the First Offender Program.
• Eligible Offenses: Virginia Code Section 18.2-251 applies to felony drug offenses (possession of cocaine and heroin are examples). Charges of distribution or possession with intent to distribute are not permitted under the First Offender Program.
• Consent to Treatment: Individuals must voluntarily agree to undergo a substance abuse assessment and complete any recommended treatment or education programs. This may involve counseling, rehabilitation, or other interventions tailored to address the individual’s substance abuse issues.
• No Previous Participation: A person can only participate in the First Offender Drug program once. If someone has previously taken advantage of this program, they are not eligible a second time.
• Compliance with Program Requirements: Participants must successfully complete all aspects of the treatment or education program, community service and pay all court costs as directed by the court. This includes attending sessions, passing drug tests, and meeting any other requirements outlined in their individualized plan.
• Probationary Period: Individuals will be placed on probation while completing the program. During this time, they must comply with any conditions set by the court, which may include regular check-ins, continued sobriety, and avoiding further legal issues.
• Expungement: If someone successfully completes the First Offender Program, the charge is dismissed; however, the charge remains on the person’s record and within public view and the charge cannot be expunged under Virginia Code Section 19.2-392.2.

Charges dismissed under Virginia Code Section 18.2-251’s First Offender Program CANNOT be expunged, but…

Is there a better way?

YES! Under Virginia Code Section 19.2-298.02 dismissed charges to be expunged!

This is the Clean Slate Virginia way!

In 2021, Virginia enacted an expungement law that allows pending criminal charges to be taken under advisement and expunged after they are dismissed. Virginia Code Section19.2-298.02 allows any criminal charge to be expunged, by agreement of the Commonwealth Attorney, after the charge is dismissed.

Virginia Code Section 19.2-298.02 is designed for criminal defendants with little or no prior criminal record. The statute allows charges to be taken under advisement and then upon the completion of the court’s requirements, the charge can be dismissed. The last section of Virginia Code Section 19.2-298.02 provides that when the Commonwealth Attorney agrees, the charge can be expunged after it is dismissed.

Section (D) of Virginia Code Section19.2-298.02 reads as follows:

Upon agreement of all parties, a charge that is dismissed pursuant to this section may be considered as otherwise dismissed for purposes of expungement of police and court records in accordance with § 19.2-392.2, and such agreement of all parties and expungement eligibility shall be indicated in the final disposition order.

Who qualifies?

Anyone who is charged with a criminal offense in Virginia can potentially take advantage of this expungement statute. Prosecutors will generally only agree to expungement when the defendant has little or no prior criminal history. The responsibility is on the defendant and defendant’s attorney to advocate for expungement. Prosecutors are not offering to allow expungement without the request of the defendant or the defendant’s attorney.

Benefits of Expungement

When a criminal charge is dismissed, the defendant’s criminal record reflects that they were charged and then ultimately not convicted. However, if the charge is expunged, the charge and the dismissal is removed from the criminal record completely. So, employers will not know that the person was ever charged with a crime. The charge is also removed from the Virginia case management system, so the general public can no longer see or access the charge.
The value of expungement is hard to overstate. While a dismissed criminal charge is not held against a person, in practice, employers consider dismissed charges in employment decisions on a daily basis. Anyone who has the opportunity to have a charge expunged, should take advantage of that opportunity!

Think of it this way: If you were an employer, would you hire the person with a clean record or the person who was charged with a crime and then had the charged dismissed?

How to use this law to your advantage

As a practical matter, each Virginia jurisdiction generally has a standard plea agreement that does not allow for expungement. One Virginia jurisdiction requires a defendant to wait five years after the dismissal for an expungement. Clean Slate Virginia has been effective in removing that term of the plea agreement, so that the charge can be expunged immediately after dismissal.

Also, as a practical matter, the decision to allow expungement requires the agreement of the individual prosecutor. Clean Slate Virginia has effectively persuaded prosecutors to allow expungement when not routinely granted by the jurisdiction.

Virginians too often think that their criminal charge can be expunged anytime that a criminal charge is dismissed. In fact, Virginia’s expungement statute is very limited and people routinely don’t understand the requirements for expungement until it’s too late.  Clean Slate Virginia recognizes the value of expungement for all Virginians and always advocates for expungement for every client.

There is no legal reason that the First Offender Program under Virginia Code Section 18.2-251 has to be used in drug cases instead of Virginia Code Section 19.2-298.02. If the deferral and dismissal Code Section is used and the Commonwealth Attorney agrees, then the charge can be dismissed and also expunged.

Clean Slate Virginia uses existing Virginia laws in a way that is not common practice across the Commonwealth. The Clean Slate Virginia way is to advocate for expungement in every possible case for every client!

If you have a pending criminal charge that you would like to have expunged, contact Clean Slate Virginia today.

If you have a PENDING criminal charge, click here to learn about expungement for pending criminal charges.

If you have a criminal CONVICTION, click here to learn about new Virginia laws to seal criminal convictions.