Common Mistakes About Expungement


Common Mistakes About Expungement.

A client walks into my office and wants me to file an expungement to erase his criminal record.   Some time ago the client was caught stealing and was charged with a grand larceny (felony).  After negotiating with the prosecutor, the attorney amended the charge to a petit theft (misdemeanor) and told the client that if he took classes and stayed out of trouble for a year the case would be dismissed.  The client completed the program, the case was dismissed, and now he wanted his records expunged.

I tell him that he can’t ask for expungement.  He looks at me as if I’m fresh off of law school and says, “What do you mean I can’t. I just told you that my attorney had the charges dismissed.”  I say yes, but there are limited instances in which an expungement is allowed, and dismissal after a good behavior (deferred adjudication) is not one of them.  That’s when I start to explain what is or is not expunged in a criminal proceeding.

In Virginia, and similarly elsewhere, when a person is charged with a crime that record stays with him forever.  Even if the charge is later dropped or dismissed because he wins in court, the fact that he was charged with a crime stays on the record for anyone to see.  However, there are limited instances in which you can have the record expunged or “erased”.  The limited instances are those cases in which you were found “not guilty” or in which your charges were withdrawn by the prosecutor or “noll pros”.  Anything short of that, you cannot ask for expungement.

And that’s where deferred disposition program comes in.  A deferred disposition is given to first time offenders for minor crimes, such as petit theft or small possession of marijuana.  Once you complete all the requirements of the program, which consists of attending classes and performing community service, your charges are dismissed by the court.  It’s a good idea: giving a person a second chance to make it right.

However, while a person who completes a deferred disposition will have his criminal charges “dismissed” in court, the criminal record will stay with him forever.  In other words, he will always have a record that he was charged with a crime, attended deferred disposition, and the case was dismissed.

Most people don’t like that.  They think if they attend a deferred disposition program and finish it, then not only the case should be dismissed, but also the entire record should be erased.  But that’s not what the expungement law provides.  An expungement literally erases the criminal record from the books (so to speak); and when expungement is granted the courts and other departments have to erase all records of that particular criminal charge.  But such a far reaching remedy is only available to those who the law feels were truly “innocent”; i.e., those cases in which the person was found not guilty or in which the prosecutor withdrew the charges.

Not sure I agree with that.  I think if the purpose of a deferred disposition program is to give someone a second chance, then it should also include the right to expunge the record.  However, that is for our legislature to decide and beyond the scope of this article.

So just because your case was dismissed following deferred disposition, don’t think you can expunge/erase it.  It is, I have found, a common mistake that people have about expungement.

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