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If you have been arrested or charged with a crime in Virginia, you may have heard that expungement can help you clear your record. But what does expungement actually mean in the Virginia legal system? How does it work, and what are its limitations? Understanding the answers to these questions is the essential first step in deciding whether to pursue expungement and what to expect from the process.
What Expungement Means in Virginia
Expungement in Virginia is a court-ordered process that removes records of an arrest, charge, and related court proceedings from public criminal databases. When a Virginia circuit court grants an expungement, it issues an order directing the Virginia State Police, the arresting law enforcement agency, and the court clerk to seal those records so they are no longer accessible through standard background checks or public record searches.
The term “expungement” can be somewhat misleading because it suggests that records are destroyed or erased entirely. In Virginia, that is not exactly what happens. The records are not physically deleted. Instead, they are placed under seal, meaning they are removed from the publicly searchable portions of criminal databases and access is heavily restricted. For practical purposes, the effect is the same as if the records were erased: they will not appear on most background checks, and you can legally deny the existence of the arrest or charge in most situations.
Virginia uses the term “expungement” in its statutes, but what it describes is functionally closer to what other states call “record sealing.” The key takeaway is that the records still exist in a restricted form, but they are invisible to the general public, employers, landlords, and most other parties who might run a background check on you.
The Legal Basis for Expungement
Virginia’s expungement process is governed by Virginia Code Section 19.2-392.2. This statute is rooted in a straightforward policy recognition: that arrest records can cause substantial and ongoing harm to people who were never convicted of a crime. The law acknowledges that these records create barriers in employment, education, and credit opportunities, and it provides a legal mechanism to address that harm.
Under this statute, a person may petition for expungement when charges against them resulted in one of three outcomes: acquittal (found not guilty at trial), nolle prosequi (the prosecution chose not to pursue the charge), or dismissal (the court dismissed the charge for any reason). The petition is filed in the circuit court of the jurisdiction where the original charge was brought.
The statute also establishes the standard the court uses when deciding whether to grant expungement. If the Commonwealth’s Attorney does not object, the court may grant the petition relatively straightforwardly. However, if the Commonwealth’s Attorney opposes the expungement, the petitioner bears the burden of proving that keeping the record on file would constitute a “manifest injustice.”
Key Point: Expungement in Virginia is available only for charges that did not result in a conviction. If you were found guilty or pleaded guilty, the charge is generally not eligible for expungement under current Virginia law.
Expungement vs. Other Forms of Record Relief
Expungement is one of several legal mechanisms that exist for addressing criminal records:
Expungement vs. Pardons
A pardon is an act of executive clemency granted by the Governor of Virginia. A pardon does not erase or seal your record. It is an official statement of forgiveness that may restore certain rights, but the conviction itself remains on your record and visible to the public. Expungement, by contrast, removes the record from public view.
Expungement vs. Record Sealing
Virginia’s expungement process is functionally a form of record sealing. In states that distinguish between the two, “expungement” typically means the records are destroyed, while “sealing” means they are hidden from public view but still exist in restricted form. Virginia uses the word “expungement” but operates more like sealing in practice.
Expungement vs. Certificates of Rehabilitation
Some jurisdictions offer certificates of rehabilitation that acknowledge a person’s rehabilitation without affecting the underlying record. Virginia does not have a certificate of rehabilitation program. Expungement is the primary mechanism for addressing the impact of a criminal record in Virginia.
How Virginia Compares to Other States
Virginia’s approach to expungement is more restrictive than many other states. Several states, including Pennsylvania, Utah, and Michigan, have enacted laws allowing expungement or sealing of certain conviction records, not just non-conviction records. Some states have even adopted “clean slate” laws that automate the sealing of eligible records after a waiting period. Virginia’s current statute remains focused primarily on cases that resulted in acquittal, dismissal, or nolle prosequi.
On the process side, Virginia requires filing a petition in circuit court, service on the Commonwealth’s Attorney, and potentially a court hearing. Some states have streamlined this with standardized forms and administrative procedures.
What Records Are Affected
When a Virginia court grants an expungement, the order affects multiple sets of records:
- Virginia State Police records: The central criminal records repository seals the arrest and charge information.
- Local law enforcement records: The arresting agency seals their records of the arrest.
- Court records: The clerk seals the court file including charging documents and disposition.
- FBI records: The Virginia State Police notify the FBI to update the national criminal database.
Note on third-party databases: Private background check companies maintain their own databases and do not always update promptly. If an expunged record still appears on a commercial background check, contact the company directly with a copy of your expungement order.
Who Can Still See Expunged Records
Expungement significantly limits who can access your records, but certain entities retain access:
- Law enforcement agencies: Police and prosecutors can still access expunged records for law enforcement purposes.
- Certain government agencies: Some state agencies involved in licensing for sensitive professions may have statutory authority to access sealed records.
- Federal agencies: Federal background investigations, including those for security clearances, may uncover expunged state records.
- The courts: Judges retain the ability to access sealed records if relevant to a subsequent legal proceeding.
For the vast majority of everyday situations, including private-sector employment, housing applications, college admissions, and most professional licensing, an expunged record will not be visible.
How the Expungement Process Works
- Determine eligibility: Confirm the charge resulted in an acquittal, nolle prosequi, or dismissal.
- Prepare your petition: Draft the expungement petition with your identifying information and charge details.
- Obtain fingerprints: Get a complete set of fingerprints taken by a law enforcement agency.
- File the petition: Submit your petition and fingerprints to the circuit court clerk. Pay the filing fee.
- Serve the Commonwealth’s Attorney: Provide a copy of the petition. They have 21 days to respond.
- Attend the hearing: If the Commonwealth’s Attorney objects, you must demonstrate manifest injustice.
- Receive the order: The judge signs an expungement order directing agencies to seal your records.
- Records are sealed: Processing typically takes two to three months after the order.
The entire process usually takes three to six months.
This article is for informational purposes only and does not constitute legal advice.