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 certain criminal charges 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 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, then 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.

Conclusion

Clean Slate Virginia recognizes the value of expungement for all Virginians and always advocates for expungement for every client.