In Virginia, if a charge is dismissed or amended, you can petition a circuit court to have the original charge expunged at any time. The process is straightforward, but you should consider hiring an attorney to help. Running through the process yourself can be a trap for the unwary and because it is relatively uncomplicated, an attorney can assist you for a reasonably low cost.
What's the process for having a charge expunged?
- The first thing you need to determine is whether the charge was actually dismissed or amended. An attorney can look into that easily. For example, if you were charged with DUI and found not guilty, you can have the DUI arrest and charge dismissed. But if you were found guilty, the charge cannot be expunged. However, if the charge was amended to reckless driving, you may be able to have the original DUI charge expunged.
- After you've determined that the charge was dismissed or amended, you need to file a petition with the circuit court. There's a filing fee and a service fee associated with that. You also need to file the original arrest warrant with the petition.
- Next, you need to obtain a copy of your fingerprints and have them sent to the state police. The state police will run a background check to determine whether you have any other criminal record. Once the state police have concluded their records search, they will forward the information to the circuit court.
- Once the circuit court has the information from the state police, you will need to either schedule a hearing or submit a final order of expungement to the circuit court.
- At that point, the judge will sign the order or schedule a hearing.
If I did first offender for Possession of Marijuana or Underage Possession of Alcohol, can I have the charge expunged?
No. If you complete the first offender program and have the charge dismissed, it cannot be expunged. There's a complicated legal reason for this, but simply put, as Virginia law stands today, the charge cannot be expunged. You should consider that before accepting any first offender program. If your case is a borderline case, the option to have the charge expunged could be the difference maker for you.