New Virginia Expungement and Sealing Laws

Prior to April 2021, Virginia was one of the most challenging states to get records sealed. On April 7, 2021, Governor Northam signed House Bill 2133 and Senate Bill 1339 amending §§ 9.1-101, 9.1-128, 9.8-134, 17.1-293.1, 17.1-502, 19,2-310.7, 19.2-389.3, and 19.2-396 and creating 17.1-205.1 and Chapter 23 (19.2-392.5 – 19.2-392.17 et seq) of Title 19.2. This bill established a new Virginia Code that allows for many additional charges to be sealed and created a new process for automatically sealing certain charges. While this bill will not be fully in effect until July 1, 2025, individual courts may begin to set up their automatic sealing and sealing by petition processes at an earlier date. Further, it appears that clients can still petition to seal, even if later the charge/conviction would be eligible for automatic sealing. 

Automatic Sealing vs. Sealing by Petition

Certain charges are eligible for automatic sealing, while others may only be sealed if the individual with the charge files a petition with the circuit court of the county or city in which the case was disposed.

Conditions for Automatic Sealing

Only certain charges are qualified for automatic sealing, so it is important to make sure your charge is eligible (see the section labeled “Charges Eligible for Automatic Sealing” to check if your charge is eligible). Furthermore, a certain amount of time must have passed since the date of dismissal or conviction of the charge. Individuals also must have received no charges or convictions, excluding traffic violations, during the time period between the date of the dismissal or conviction and the sealing date. An additional condition for automatic sealing is that on the date of deferral, dismissal, or conviction, the person with the offense cannot have been convicted of another offense that is not eligible for automatic sealing.

Conditions for Sealing by Petition

There are several conditions for sealing by petition. One is that you can have no convictions for Class 1 or 2 felonies or any other felony punishable by imprisonment for life. Another requirement is that you can have no convictions for Class 3 or 4 felonies within the past 20 years. You must also have received no other felony convictions within the past 10 years of your petition.

An additional condition is that a sufficient period of time must have elapsed since the date of the dismissal of the deferred charge, the conviction, or the release from incarceration (check the time requirements under the section labeled “When can I get my Charge Sealed?”). During this period of time, you cannot have been convicted of violating a law in the United States, excluding traffic violations. 

If your offense involved, the use or dependence on alcohol, a narcotic drug, or any other self-administered intoxicant or drug, then you will have to demonstrate your rehabilitation.

You may only have two charges sealed in your lifetime, so a petition or automatic sealing for a third charge will not be approved.

Additionally, the continued existence and potential spreading of information about the charge or conviction causes or may cause you circumstances that constitute a manifest injustice.

When can I get my Charge Sealed?

There are two main factors that influence when you can get your charge sealed. First, this bill is not fully in effect yet. This bill will become fully effective on July 1, 2025; however, court systems are already starting to work on their systems for automatic sealing and sealing by petition, so certain courts may have their system in place at an earlier date. You may be able to check with the court your charge was disposed of to find out if and when their system is in place prior to July 1, 2025. If the court finishes setting up their system prior to July 1, 2025, the process for sealing will begin four months after the court notifies all the proper channels that their system is in place.

The other main factor is how long it has been since a) the dismissal of your deferred charge, b) your conviction, or c) your release from incarceration for the charge. Misdemeanor offenses are not eligible for sealing until seven years after the latest date of a, b, or c. Felony offenses are not eligible for sealing until ten years after the latest date of a, b, or c.

Process for Automatic Sealing

For offenses resulting in a deferred and dismissed disposition or conviction that meet the criteria for automatic sealing, the process will be started by the Department of State Police. The Department of State police will figure out which offenses in the Central Criminal Records Exchange meet the criteria for automatic sealing and then provide an electronic list of these offenses to the Executive Secretary of the Supreme Court and to any circuit court clerk who maintains a case management system that interfaces with the Department of State Police at least once per month. 

The Executive Secretary of the Supreme Court will, at least monthly, send the circuit court clerks that participate in the case management system maintained by the Executive Secretary are in the jurisdiction where the cases were finalized the electronic list of offenses. At least monthly, the clerk of each circuit court will use the electronic list to prepare an order with the names corresponding to the offenses that the chief judge of the circuit court should enter, instructing that the offenses be sealed. After the order is issued, the clerk of each circuit court will provide the Department of State Police with an electronic copy of the order at least monthly. 

For misdemeanor offenses resulting in acquittal, nolle prosequi, or dismissal, the court dealing with the matter should order that the charge be automatically sealed unless the court is notified that one of the following conditions is present:

1. The charge is ancillary to another charge that resulted in a conviction or a finding of facts sufficient to justify a finding of guilt;
2. A nolle prosequi is entered or the charge is dismissed as part of a plea agreement;
3. Another charge arising out of the same facts and circumstances is pending against the person;
4. The Commonwealth intends to reinstitute the charge or any other charge or any other charge arising out of the same facts and circumstances within three months;
5. Good cause exists, as established by the Commonwealth by a preponderance of the evidence, that such charge should not be automatically sealed; or
6. The person charged with the offense objects to such automatic sealing.

For felony offenses resulting in acquittal or dismissal with prejudice, the person charged can orally request for the records related to the charge to be sealed. If the attorney for the Commonwealth agrees to the sealing of the offense, the court will order automatic sealing of the records related to the charge.

For instances where a person is charged or arrested as a result of mistaken identity or unauthorized use of identifying information resulting in a nolle prosequi or dismissal, the Commonwealth attorney or any other person requesting the nolle prosequi or dismissal should let the court know the circumstances and the court should order that the charge be automatically sealed unless the person charged objects.

For misdemeanor offenses resulting in acquittal, nolle prosequi, or dismissal where the person charged has no convictions or deferred and dismissed offenses on their criminal history record, the Department of State will, at least annually, review the Central Criminal Records Exchange and compile a list of those offenses. The process will then proceed in the same manner as for misdemeanor offenses resulting in deferred and dismissed disposition or conviction.

For all sealed offenses, the offenses will be considered sealed once the Department of State Police receives the electronic copy of the order. After, the Department will not release any criminal history record information related to the offense and will direct all agencies and individuals known to maintain or have obtained the records that they have been sealed. The Department of State Police and all other agencies and individuals with the sealed records will not release the records unless directed to under § 9.1-128 and § 9.1-134.

Process for Sealing by Petition

An individual with offenses eligible for sealing by petition should start the process of getting their charge sealed by filing a petition in the circuit court of the county or city where the case was disposed. The petition should include the relevant facts, a request for sealing of the criminal history record information and court records related to the charge, the date of arrest, the name of the arresting agency, the date of conviction, the charge or conviction to be sealed, the date of the final disposition of the charge or conviction, the petitioner’s date of birth, sex race, social security number, and the full name used by the petitioner at the time of arrest or summons. If any of this information is reasonable unavailable, the petitioner should include the reason for the unavailability. The petition should also be sent via delivery or first-class mail to the attorney for the Commonwealth of the city or county where the petition is filed. The Commonwealth attorney then has 21 days after receiving the petition to file an objection, answer the petition, or give written notice to the court that they have no objection to the petition.

Once the circuit court receives the petition, they will order the Commonwealth attorney, or a law-enforcement officer, to provide the court with a sealed copy of the criminal history record of the petitioner. After the court is given the petitioner’s criminal history record, a hearing will take place and if the court finds all the necessary conditions to be met, then the court will order the sealing of the criminal history record information and court records related to the charge or conviction. If the Commonwealth attorney notes that there is no objection to the petition and that the continued existence of the information related to the charge may cause circumstances that constitute a manifest injustice to the petitioner. Following the issuance of the sealing order, the clerk of the court will send an electronic copy of the order to the Department State Police and the process will proceed from that point in the same manner as in automatic sealings.

Charges Ineligible for Sealing

See table below to see which charges are ineligible for sealing. Click the link for each charge to see the full code section and charge description.

 

Charges Ineligible for Sealing
Involuntary manslaughter resulting from driving intoxicated	Involuntary manslaughter resulting from operating a watercraft while intoxicated	Caused serious bodily injury to another person while driving intoxicated	Caused serious bodily injury to another person while operating a watercraft intoxicated	Assault and battery against family or household member	Driving while intoxicated	Driving a commercial vehicle while intoxicated
§ 18.2-36.1	§ 18.2-36.2	§ 18.2-51.4	§ 18.2-51.5	§ 18.2-57.2	§ 18.2-266	§ 46.2-341.24

 

Charges Eligible for Automatic Sealing

See table below to see which charges are eligible for automatic sealing. Click the link for each charge to see the full code section and charge description.

Charges Eligible for Automatic Sealing
Deferred and Dismissed	Unlawful purchase or possession of alcoholic beverages			Unlawful possession of marijuana
	§ 4.1-305			§ 18.2-250.1
Convicted	Unlawful purchase or possession of alcoholic beverages	Petit   larceny	Shoplifting	Trespassing	Instigating another’s trespassing	Trespassing to hunt, fish, or trap
	§ 4.1-305	§ 18.2-96	§ 18.2-103	§ 18.2-119	§ 18.2-120	§ 18.2-134
Convicted of Misdemeanor Charge	Sale, gift, distribution or possession with intent to sell, gift or distribute less than one ounce of marijuana		Unlawful possession of marijuana		Disorderly conduct in a public place
	§ 18.2-248.1		§ 18.2-250.1		§ 18.2-415
Charged	Misdemeanor Offense, excluding Traffic Infractions, and resulted in acquittal, nolle prosequi, or dismissal		Charged with Felony Offense and resulted in acquittal or dismissal with prejudice		Charged as a result of mistaken identity or unauthorized use of identifying information

 

Charges Eligible for Sealing by Petition

Misdemeanor offenses, Class 5 or 6 felony, grand larceny charge (violation of § 18.2-95) or any other felony offense in which the defendant is deemed guilty of larceny and punished as presented in § 18.2-95.

If you have questions about sealing by petition or settlement, please contact a expungement lawyer in Virginia who offers a free consultation, so you can learn more about the ways you can proceed.