How To Get Your Criminal Record Expunged

A friend of the channel, Celia, has written in to ask whether or not she can get her 10-year-old criminal record expunged. Can she have it erased? The short answer is, sadly, no.

Virginia Law

Many states allow you to expunge minor criminal offenses after the passage of some years, usually 10. Virginia does not allow this. Once you have a criminal conviction on your Virginia record, it will stay forever.

What Virginia does allow to be expunged are charges, charges for which you were found not guilty, or charges that were dropped. That is, if the only thing on your record is an arrest, you can get that expunged.

Two categories of arrest records

Arrest records fall into two categories in Virginia. Category number one is that you don’t have a criminal record. The only thing on your record is the fact of an arrest at some time in the past. Under Virginia law, you have an absolute right to have that arrest expunged after one year.

It is a simple application to the circuit court in the county where you live. If you fall into this category and the state police don’t find any other convictions on your record, then the judge at the circuit court will expunge this record.

The second category applies if you do have other convictions on your record, but you weren’t convicted of this one. Now, you don’t have an automatic right to it. Instead, it’s up to the circuit court judge to decide whether it’s reasonable to remove this particular charge from your record. Typically, the standard that’s used is whether or not the existence of this charge on your record will have a material effect on your life.

And here is where this typically comes up. Let’s say you have a minor conviction for marijuana possession from years ago, but now you’ve been charged with a much more serious crime. You may have been charged with robbery. Robbery is a pretty scary thing.

With an arrest for robbery on your record, you might have a hard time getting a job. You might have a hard time getting a loan or a mortgage or any number of things. So you would have a really good reason to want that charge of robbery off your record. And so, the judge might well find that having a charge for a serious crime like that is going to materially affect you.

Whereas if it was just another arrest for marijuana possession, the judge could reasonably find that the existence of the first conviction means that a second charge of it on your record doesn’t really have much of an effect on your life.

What does expungement really mean?

A lot of people think that somehow, the court is going to reach out and erase it from the world. Well, they can’t really do that. The judge orders the state police to expunge it from their records, and that’s it. The courts and the state police no longer have a record of the expunged charge, but the world still knows.

There are people that work in every courthouse in the state, and presumably, every courthouse in the country, and it’s their daily job to mine data and find out who was charged with what. They put that into their own databases and sell those databases. That’s how you see these companies where you can look somebody up and find out what their criminal record is.

The expungement does not reach into those civilian databases and get rid of the data. The courts don’t have that authority. All the courts can do is to remove the data that they possess. It’s still valuable to do, but it is not foolproof. Companies can still find out that you had this charge.

A common question

The last expungement topic I want to cover is a common question I get and that is, “If I have a charge expunged and then I go to apply for a job and they ask me, ‘Have you ever been arrested?’ what should I say?”

First of all, there are very, very few jobs that are ever going to ask you about arrests. Jobs ask about convictions. Have you ever been convicted of a crime and the answer is “No.” The answer was “no” even before the expungement. You were not convicted.

However, for some jobs, particularly jobs in law enforcement, intelligence, or the military, they might very well ask this. They might ask, “Were you ever arrested?” and the answer is yes, you were arrested, even if it was expunged. You’re going to have to go to some work and explain that the arrest was in error, and you were not found guilty. And that the record of it was later expunged. But don’t lie.

If you were arrested, tell them you were arrested. If you have any questions about expungements or any other area of the law, give me a call. I’d be happy to talk to you about it.