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One of the most common questions people have about the expungement process in Virginia is whether their particular charge qualifies. The answer depends less on what you were charged with and more on how the case ended. Virginia’s expungement law is not organized around specific types of offenses. Instead, it focuses on the disposition, meaning the final outcome, of the charge. This article explains in detail which charges can be expunged in Virginia, which cannot, and why the distinctions matter.
The General Rule: Disposition Determines Eligibility
Under Virginia Code Section 19.2-392.2, the primary factor that determines whether a charge can be expunged is not the nature of the offense itself but rather how the case was resolved. Virginia does not maintain a list of specific crimes that can or cannot be expunged. Instead, the law looks at whether the charge resulted in a final disposition that falls within one of the eligible categories.
This means that in theory, a very serious charge like a felony assault could be eligible for expungement if it was ultimately dismissed, while a minor misdemeanor like trespassing would not be eligible if it resulted in a guilty plea. The type of crime matters less than the outcome. This is an important point that many people misunderstand when they first start researching the process.
That said, the nature of the original charge can still affect your case in practice. If the Commonwealth’s Attorney objects to your petition, the seriousness of the underlying charge may be a factor the court considers when evaluating whether continued maintenance of the record constitutes a manifest injustice. But for the threshold question of whether you can file a petition at all, it comes down to the disposition.
Charges That Are Eligible for Expungement
Under current Virginia law, you may petition for expungement if the charge resulted in one of the following outcomes:
Acquittal (Not Guilty)
If you went to trial and the judge or jury found you not guilty, the charge is eligible for expungement. An acquittal is the strongest basis for an expungement petition because it means the legal system itself determined there was insufficient evidence to convict you. Courts are generally very receptive to expungement petitions based on acquittals, and Commonwealth’s Attorneys are less likely to object in these cases.
An acquittal can come from either a bench trial (decided by a judge) or a jury trial. The form of the trial does not affect your eligibility. What matters is the not-guilty verdict.
Nolle Prosequi (Prosecution Declined)
If the Commonwealth’s Attorney entered a nolle prosequi on your charge, it is eligible for expungement. A nolle prosequi is a formal decision by the prosecution not to proceed with the case. This can happen at various stages of the proceedings and for many different reasons.
Common reasons for a nolle prosequi include:
- Insufficient evidence to prove the case beyond a reasonable doubt
- Unavailability of a key witness
- A determination by the prosecutor that the case is not worth pursuing
- Resolution of the case through other means (though this can get complicated if a plea to another charge is involved)
- Discovery of new information that undermines the prosecution’s theory
Regardless of the specific reason, a nolle prosequi makes the charge eligible for an expungement petition.
Dismissal
If the court dismissed the charge against you, it is eligible for expungement. Dismissals can happen for a wide variety of reasons, and the specific reason for the dismissal does not generally affect your ability to petition for expungement.
Key Point: Whether your case was a misdemeanor or a felony does not change the basic eligibility rule. Both felony and misdemeanor charges can be expunged if they resulted in an acquittal, nolle prosequi, or dismissal. The level of the offense does not create an automatic bar to expungement.
Charges That Are NOT Eligible
Understanding what cannot be expunged is just as important as understanding what can. The following situations generally do not qualify for expungement under current Virginia law:
Convictions (Guilty Verdicts)
If you were found guilty at trial, that charge cannot be expunged.
Guilty Pleas
If you pleaded guilty to the charge, it is not eligible for expungement.
Guilty Pleas to Lesser Charges (Plea Bargains)
If you were originally charged with a more serious offense and pleaded guilty to a reduced charge as part of a plea agreement, you generally cannot expunge the original charge. The Virginia Supreme Court addressed this issue in Daniel v. Commonwealth.
Warning: Before accepting a plea bargain, understand that pleading guilty to a reduced charge will likely prevent you from expunging the original charge in the future.
Alford Pleas and No Contest Pleas
An Alford plea is treated as a guilty plea for purposes of the criminal record. Similarly, a nolo contendere plea results in a conviction. Both generally disqualify the charge from expungement.
The Lesser Included Offense Problem
The concept of lesser included offenses is one of the most complicated areas of Virginia’s expungement law. The Virginia Supreme Court addressed this issue in Necaise v. Commonwealth, which examined when one charge qualifies as a lesser included offense of another for expungement purposes.
Deferred Dispositions and First Offender Programs
First Offender Programs (Virginia Code Section 18.2-251)
Virginia Code Section 18.2-251 provides a first offender program for certain drug possession charges. If the person successfully completes the conditions, the charge is dismissed and should be eligible for expungement.
Deferred Dispositions Under Section 19.2-303.2
Virginia Code Section 19.2-303.2 gives courts broader authority to defer disposition in certain cases.
Completed Probation and Suspended Sentences
If you were convicted and received a suspended sentence or probation, the charge is still a conviction even after you successfully complete all conditions.
Real-World Examples
Scenario 1: Shoplifting charge dismissed after community service — eligible for expungement.
Scenario 2: DUI reduced to reckless driving with guilty plea — original DUI likely cannot be expunged.
Scenario 3: Assault charge with not guilty verdict — eligible for expungement.
Scenario 4: Drug possession through first offender program — dismissed charge should be eligible.
Scenario 5: Felony charge nolle prossed — eligible for expungement regardless of charge severity.
How to Determine Your Eligibility
- Obtain your case disposition.
- Identify the disposition category.
- Check for related charges.
- Consider deferred dispositions.
- Review your full criminal history.