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Nolle Prosequi and Your Right to Expungement in Virginia

Table of Contents

  1. What Is Nolle Prosequi?
  2. How Nolle Prosequi Differs from Dismissal and Acquittal
  3. Why Nolle Prosequi Creates a Right to Seek Expungement
  4. Common Reasons Charges Are Nolle Prosequi’d
  5. You Still Need to Show Manifest Injustice
  6. The Process for Expunging a Nolle Prosequi Charge
  7. Real-World Application
  8. Common Mistakes to Avoid

If you have received a letter stating the prosecution will not proceed with your criminal case, or a judge announced a nolle prosequi, you may be wondering what it means for your record. A nolle prosequi gives you a clear legal basis to seek expungement in Virginia.

What Is Nolle Prosequi?

Nolle prosequi translates roughly to we shall no longer prosecute. When the Commonwealth’s Attorney enters a nolle prosequi, the prosecution is declining to pursue the case further. A nolle prosequi is not a finding on the merits.

Key Distinction: A nolle prosequi means the prosecution chose to stop pursuing your case. The entry gives you the legal right to petition for expungement under Virginia Code § 19.2-392.2.

How Nolle Prosequi Differs from Dismissal and Acquittal

Nolle Prosequi

A decision by the prosecution not to proceed. No verdict is reached.

Dismissal

Typically ordered by the court for various reasons.

Acquittal

A judge or jury finds the defendant not guilty after hearing the evidence.

For expungement purposes, all three outcomes are treated similarly under Virginia Code § 19.2-392.2(A).

Why Nolle Prosequi Creates a Right to Seek Expungement

Virginia Code § 19.2-392.2(A) explicitly provides that a person may petition for expungement when a charge has been nolle prosequi’d. Having the right to seek expungement is not the same as having the right to receive it.

Common Reasons Charges Are Nolle Prosequi’d

  • Insufficient evidence
  • Witness unavailability
  • Plea agreements on other charges
  • Victim does not wish to prosecute
  • Successful completion of a diversion program
  • Constitutional or procedural issues
  • Interest of justice

You Still Need to Show Manifest Injustice

The manifest injustice standard from Daniel v. Commonwealth (268 Va. 523, 2004) requires concrete, tangible harm resulting from your arrest record.

The Process for Expunging a Nolle Prosequi Charge

  1. Obtain your criminal record from the Virginia State Police
  2. Prepare the petition
  3. Get fingerprinted
  4. File the petition and pay filing fees
  5. Serve the Commonwealth’s Attorney
  6. Attend the hearing

Important Timeline Note: There is no specific waiting period after a nolle prosequi before you can file for expungement.

Real-World Application

In situations like the MacDonald case, a marijuana possession charge that was nolle prosequi’d was successfully expunged. Cases involving nolle prosequi tend to be strong candidates for expungement.

Common Mistakes to Avoid

  • Filing in the wrong court
  • Assuming it is automatic
  • Failing to prepare evidence
  • Confusing nolle prosequi with a conviction reduction
  • Not addressing the Commonwealth’s objections