SB111: Criminal conviction; expungement of record.
SENATE BILL NO. 111
Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-392.1, 19.2-392.2, and 19.2-392.3 of the Code of Virginia are amended and reenacted as follows:
§ 19.2-392.1. Statement of policy.
The General Assembly finds that arrest records can be a hindrance to an innocent citizen's ability to obtain employment, an education and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted, or who have demonstrated their rehabilitation, can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted.
§ 19.2-392.2. Expungement of police and court records.
A. If a person is charged with the commission of a crime or any offense defined in Title 18.2, and
1. Is acquitted, or
2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.
A1. Any person who has been convicted of a criminal offense may file a petition setting forth the relevant facts and requesting expungement of police records and court records relating to the charge and conviction after at least five years have passed since the person was convicted of the offense he seeks to have expunged. The provisions of this subsection shall not apply to any person who has been convicted of (i) any felony or Class 1 misdemeanor within the period between the date of the conviction he seeks to have expunged and the petition; (ii) a violation of § 18.2-36, 18.2-54, 18.2-266, 29.1-738, or 46.2-341.24; (iii) an offense listed in § 17.1-805 or 19.2-297.1; (iv) any offense involving domestic violence for which a person is denied any firearm rights under 18 U.S.C. § 922(g); or (v) any offense for which registration is required pursuant to § 9.1-902. In order to qualify under this subsection, the petitioner shall have no pending charges; shall have no outstanding fines, costs, or restitution; and shall have completed all terms of sentencing and probation, including successful completion of any drug or alcohol treatment program, and be dependency free. The Department of State Police shall maintain a record of any expungement granted pursuant to this subsection, and any conviction that is expunged under this subsection shall be considered a prior conviction for purposes of prosecution of any subsequent offense for which such prior conviction creates a higher statutory penalty.
B. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section. Such person shall not be required to pay any fees for the filing of a petition under this subsection. A petition filed under this subsection shall include one complete set of the petitioner's fingerprints obtained from a law-enforcement agency.
C. The petition with a copy of the warrant or indictment if
reasonably available shall be filed in the circuit court of the county or city
in which the petitioner resides,
in which the petitioner was convicted, or in which the case was disposed of by acquittal or being otherwise dismissed and shall contain, except where not reasonably
available, the date of arrest and the name of the arresting agency and the date of conviction, if applicable.
Where this information is not reasonably available, the petition shall state
the reason for such unavailability. The petition shall further state the
specific criminal charge or conviction to be expunged, the date
of final disposition of the charge or conviction as
set forth in the petition, the petitioner's date of birth, and the full name
used by the petitioner at the time of arrest and conviction, if
applicable.
D. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition within 21 days after it is served on him.
E. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioner's criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner.
F. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the petition requests expungement pursuant to subsection A and the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement.
If the petition requests expungement of a conviction pursuant to subsection A1 and the court finds that the continued existence and possible dissemination of information relating to the arrest and conviction of the petitioner unduly prejudice the petitioner's opportunities for employment, education, or professional licensure, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge and conviction and shall communicate the order to the Department of State Police. Otherwise, it shall deny the petition.
G. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
H. Notwithstanding any other provision of this section, when the
charge is dismissed because the court finds that the person arrested or charged
is not the person named in the summons, warrant, indictment or presentment, the
court dismissing the charge shall, upon motion of the person improperly
arrested or charged, enter an order requiring expungement of the police and
court records relating to the charge. Such order shall contain a statement that
the dismissal and expungement are ordered pursuant to this subsection and shall
be accompanied by the complete set of the petitioner's fingerprints filed with
his petition. Upon the entry of such order, it shall be treated as provided in
subsection K hereof.
I. Notwithstanding any other provision of this section, when a
person has been granted an absolute pardon for the commission of a crime that
he did not commit, he may file in the circuit court of the county or city in
which the conviction occurred a petition setting forth the relevant facts and
requesting expungement of the police records and the court records relating to
the charge and conviction, and the court shall enter an order requiring
expungement of the police and court records relating to the charge and
conviction. Such order shall contain a statement that the expungement is
ordered pursuant to this subsection. Upon the entry of such order, it shall be
treated as provided in subsection K hereof.
J. Upon receiving a copy of a writ vacating a conviction
pursuant to § 19.2-327.5 or 19.2-327.13, the court shall enter an order
requiring expungement of the police and court records relating to the charge
and conviction. Such order shall contain a statement that the expungement is
ordered pursuant to this subsection. Upon the entry of the order, it shall be
treated as provided in subsection K hereof.
K. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to § 9.1-134, direct the manner by which the appropriate expungement or removal of such records shall be effected. Any person whose criminal records are expunged may lawfully reply to any inquiry regarding his criminal record that he has not been charged with or convicted of the criminal offense that was the subject of the expungement.
L. Costs shall be as provided by § 17.1-275, but shall not be recoverable against the Commonwealth. Each petitioner requesting expungement under subsection A1 shall also pay an additional filing fee of $325, one-half of which shall be retained by the clerk and one-half of which shall be paid into the state treasury and disbursed to the Department of State Police.
M. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order.
§ 19.2-392.3. Disclosure of expunged records.
A. It shall be unlawful for any person having or acquiring access to an expunged court or police record to open or review it or to disclose to another person any information from it without an order from the court which ordered the record expunged. Expunged court records maintained pursuant to subsection A1 of § 19.2-392.2 may be disclosed to an attorney for the Commonwealth for purposes of determining whether a defendant has ever received an expungement for a prior conviction that would increase the statutory penalty for an offense that is the subject of a pending criminal prosecution. All requests and disclosures for expunged court records maintained pursuant to subsection A1 of § 19.2-392.2 shall be made in accordance with the procedures established by the Virginia State Police.
B. Upon a verified petition filed by the attorney for the Commonwealth alleging that the record is needed by a law-enforcement agency for purposes of employment application as an employee of a law-enforcement agency or for a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record, the court may enter an ex parte order, without notice to the person, permitting such access. An ex parte order may permit a review of the record, but may not permit a copy to be made of it.
C. Any person who willfully violates this section is guilty of a Class 1 misdemeanor.
2. That the Virginia State Police shall develop procedures to allow for the secure dissemination of expunged criminal conviction records to attorneys for the Commonwealth in accordance with the requirements of subsection A of § 19.2-392.3 and any rules or regulations adopted pursuant to § 9.1-134.