News

Please click on one of the links below to view an article on an area of my practice. For more information, please contact my officeor call me at (804) 592-2058 and set up a confidential meeting.

The information provided here is not legal advice nor can you rely on this information to be legal advice. This information is provided for general informational purposes only. You must consult an attorney to receive appropriate legal advice specific to the facts of your case.


Juvenile Adjudications Aren't Child's Play

The consequences of "adjudications of juvenile delinquency" are severe. If a juveniles adjudicated delinquent for a crime that would be a felony if committed by an adult saddles that kid with the label "FELON" for the rest of his life. If a juvenile 14 years of age or older at the time of the offense is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult, all court records, except any social history, mental health records, shall be open to the public and shall be retained by the court. Va. Code § 16.1-305. In short, the juvenile felony adjudications will not be expunged...ever.
The bit of good news for a juvenile adjudicated delinquent of an adult felony is that the juvenile will not be deprived of his civil rights as it would for an adult convicted of a felony. Va. Code § 16.1-308. Be aware, however, the felony adjudication will bar the juvenile from purchasing a firearm later in the juvenile's adult life.
The juvenile adjudicated delinquent of an adult felony will have to provide a DNA sample that will be maintained at the Central Criminal Records Exchange. Va. Code § 16.1-299.1.
The juvenile will further be required to submit fingerprints and photographs when arrested and maintained at the CCRE. Va. Code § 16.1-299. If the juvenile, of any age, is convicted of a felony or adjudicated delinquent of an offense that would be a felony if committed by an adult, copies of the fingerprints and a report of the disposition will be forwarded to the CCRE.
Fortunately, it's not quite as dire if a juvenile is adjudicated delinquent of a crime that would be misdemeanor if charged as an adult. The records of a juvenile charged with an adult misdemeanor are not open to the public. Only a few, specific people have access to the records. Va. Code § 16.1-305. Be aware, however, that Va. Code § 16.1-299 requires that fingerprints and photographs be forwarded to the CCRE. While release of the information held by CCRE related to a juvenile charged with an adult misdemeanor is strictly limited, it does still exist in law enforcement records.
Yet one more bit of fortune exists when a juvenile is charged with a misdemeanor instead of a felony. Va. Code § 16.1-306 requires the clerk of the juvenile and domestic relations district court to destroy all files and records related to any proceeding concerning a juvenile when the juvenile reaches the age of 19 years and five years have passed since the date of the last hearing. There are a few exceptions to this, such as DUI related offenses. The records related to a juvenile adjudicated delinquent of an adult felony will not be expunged. The court is supposed to notify the juvenile of his rights related to the expungement of the juvenile record at the dispositional hearing. When the records are destroyed, the "violation of law shall be treated as if it never occurred." All references must be deleted and the court, law-enforcement officers, agencies, and the person may reply to any inquiry that no record exists.


Restoration of Firearm Rights

Va. Code § 18.2-308.2 prohibits a person who has been convicted of a felony from possessing or transporting a firearm. Likewise, if you were adjudicated delinquent as a juvenile 14 years of age or older at the time of an offense of murder, kidnapping, robbery by the threat or presentation of firearms, or rape you cannot possess a firearm. In addition, any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, other than murder, kidnapping, robbery by the threat or presentation of firearms, or rape cannot possess a firearm.

You may, however, have your right to possess a firearm restored. The prohibition to possession a gun in Virginia under Va. Code 18.2-308.2 does not apply to a felon who has had his "political disabilities" removed by the Governor "pursuant to Article V, Section 12 of the Virginia Constitution provided the executive order granting the pardon or restoring the person's civil rights contains no express conditions limiting the reinstatement of the person's right to ship, transport, possess or receive firearms. However, when you apply to the Governor's office for a restoration of civil rights, the rights that will be restored are limited to the right to register to vote, hold public office, serve on a jury, and serve as a notary public. The restoration of rights does not restore the right to possess a firearm.

To restore the right to possess a firearm, a felon must petition the appropriate circuit court pursuant to Va. Code §18.2-308.2. To regain state firearms privileges, a felon may apply to the Circuit Court of his residence for a permit to possess or carry a firearm. The court "in its discretion and for good cause shown" may grant the petition. While the Governor has the authority to restore state firearms privileges expressly by a pardon or though restoration of political rights, he does not customarily do so.

For purposes of determining whether or not a felon is eligible to possess a gun under federal law, the predicate felony conviction is determined under the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside, or for which a person has been pardoned, or has had civil rights fully restored is not a predicate felony conviction for purposes of lawfully possessing a firearm. Felonies, for purposes of understanding whether or not a felony conviction prohibits firearm possession under federal law, does not include certain business and white collar crimes.

Under 18 U.S.C. § 921(a)(20), a crime punishable by imprisonment for a term exceeding one year does not include any Federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.

Misdemeanor crimes of domestic violence present a unique issue. Because it is a misdemeanor, there is no denial of state civil rights nor is there a restriction on the possession of a firearm. It appears the only remedy that may available in cases of misdemeanor domestic violence convictions is to seek a pardon. Recently, however, the Fourth Circuit decided that the Virginia statute defining assault and battery would not necessarily be a misdemeanor crime of domestic violence under federal law. As a result of the decision in this new case, it may be, in certain cases, that a loss of one's right to possess a firearm cannot be denied by the federal government.

Under federal law, a person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws. The Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. A person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial.
There's a problem with this scheme, however. The Attorney General delegates the review of the restoration petitions to the Bureau of Alcohol, Tobacco and Firearms (BATF). Since 1992, Congress, in its annual appropriations, has explicitly barred BATF from expending funds to investigate or act on applications by individuals. Consequently, BATF has not been processing applications. The U. S.Supreme Court has held that BATF inaction on applications does not constitute a "denial" under the law thus an applicant cannot go on to the federal court to seek judicial review to regain their firearm privileges. For the time being, a federal felon's sole option is to seek, and hope for, a presidential pardon.


Restoration of Civil Rights

If you were convicted of a felony, restoring your civil rights is the first door to get through to obtain a pardon and to have your right to possess a firearm restored. The restoration of rights restores the rights to vote, to run for and hold public office, to serve on juries and to serve as a notary public. Restoration of rights does not include the right to possess or transport a firearm or to carry a concealed weapon.

Restoring your civil rights begins with the Governor's office. The eligibility requirements for restoration of rights by the Governor of Virginia:

  • The applicant must be a resident of the Commonwealth of Virginia or have been convicted of a felony in a Virginia court, a U.S. District court or a military court.
  • The applicant's sentence must be completely served.
  • The applicant cannot be under any supervised probation and parole for a minimum of two years for a non-violent offense or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.
  • The applicant must have paid all court costs, fines, penalties, and restitution.
  • The applicant cannot have any pending misdemeanor or felony charges.
  • The applicant cannot have had a driving while intoxicated charge in the five years preceding the application.
  • The applicant cannot have any misdemeanor convictions and/or pending criminal charges for two years preceding the application for non-violent felonies or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.

The Director of the Department of Corrections is required to provide to any person convicted of a felony notification of the loss of his civil rights and of the processes to apply for restoration of civil rights and of voting rights. The notice is required to be given at the time the person has completed service of his sentence, period of probation or parole, or suspension of sentence. Va. Code § 53.1-231.1.

The application for restoration of civil rights is submitted to The Secretary of the Commonwealth Office, which will conduct a criminal history and DMV record check. An applicant will receive notice of the Governor's decision within 60 days from the time an application is considered complete. If the petition for restoration of rights is denied, you may reapply after a one-year period.

There's another interesting avenue to get to a restoration of civil rights, and that's using Va. Code § 53.1-231.2. Va. Code § 53.1-231.2 allows persons convicted of non-violent felonies, except certain drug-related offenses and election fraud, to petition a circuit court for approval of a restoration of voting rights. This petition is to determine voting rights, but can be used as a stepping stone to the full restoration of a felon's civil rights. The decision whether to restore a petitioner's civil rights rests solely with the Governor, who may grant or deny a petition without explanation. In this statute, the General Assembly has established standards for identifying felons who may qualify for restoration of their eligibility to vote. The court's function is limited to making a determination whether a petitioner has presented competent evidence supporting the specified statutory criteria, and a court's approval or denial of a petition and transmittal of its order to the Secretary of the Commonwealth completes this statutory process. The court's order does not constitute the rendering of an advisory opinion because the order adjudicates only the issue of the sufficiency of the evidence in support of the statutory criteria and does not state an opinion whether the Governor should restore the civil rights of a petitioner.

It is important to know that if a circuit court denies a petition filed under the statute, that denial does not affect a convicted felon's constitutional right to apply directly to the Governor for restoration of the petitioner's civil rights. Filing a petition in the circuit court is not a requirement before applying to the Governor.


Expunge Your Record

Virginia Code § 19.2-392.2 provides the skeleton of what it takes to be eligible for an expungement. The final disposition of the case must be acquittal, nolle prosequi, or "the charge [was] otherwise dismissed." "Otherwise dismissed" is the disposition that typically is in the gray area where you may, or may not, be eligible for an expungement.

"Otherwise dismissed" means that your charge was dismissed by the court because you were truly innocent. If a defendant pleads guilty to the charge or if the court found evidence sufficient to find the defendant guilty, but the court deferred its judgment so that the defendant could, perhaps, pay restitution or complete substance abuse counseling, you would likely not be eligible for expungement. Dismissal of a case following a plea of no contest would similarly render a defendant ineligible for expungement.

Assuming you are eligible for the expungement, a petition is filed with the circuit court. After you complete the remaining requirements, there will be a hearing where you may have to show that you deserve to have your record sealed. You may have to personally testify or call witnesses to testify on your behalf. For example, you may have to tell the court how the charges on your criminal history negatively affect your ability to find employment. It may also be that you have been denied a security clearance necessary to your job. Perhaps you may want to have your employer testify that your criminal history hinders your ability to execute your job.

A court may then order your criminal history expunged and require that law enforcement no longer disseminate the information that was expunged.


What Do You Do?

You have the right to remain silent, to consult with an attorney, and to be free from unreasonable searches and seizures by law enforcement. These are you constitutional rights that you have every right to assert when you have an encounter with law enforcement.

First and foremost, remain polite and calm. Provide your identification, car registration, and proof of insurance. Politely refuse to answer further questions. Perhaps most importantly, do not consent to any search of your person, your property, your residence or your car. Do not answer any questions about whether or not you own any property. Remember, if you are not under arrest, you do have the right to leave.

State clearly, calmly, and politely that you:

Refuse to waive your right to remain silent.

Refuse to waive your right to an attorney.

Refuse to waive your right to be free from unreasonable searches and seizures.


What's the Big Deal About Reckless Driving?

This is a question that comes from many non-Virginians. Reckless Driving in other states is treated as a mere traffic infraction...something that passes eventually and you are not permanently damaged by a finding of guilt.In Virginia, reckless driving is Class One Misdemeanor Criminal Charge, punishable by up to 12 months in jail, up to a $2,500 fine, and a possible loss of your driving privilege for up to six months. You could be arrested and have your car impounded. Reckless Driving in Virginia is a serious matter that should not be treated as a routine traffic matter. You will leave with a criminal record when you leave the courthouse.

There are many definitions of reckless driving, from speeding to racing to passing an emergency vehicle.

Reckless driving is speeding 20+ over the speed limit. Va. Code 46.2-862. A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit.

Driving in a manner generally endangering others. Va. Code 46.2-853. Reckless driving; general rule - Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

Passing a stopped, properly equipped school bus. Va. Code 46.2-859. A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and to remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion. The driver of a vehicle, however, need not stop when approaching a school bus if the school bus is stopped on the other roadway of a divided highway, on an access road, or on a driveway when the other roadway, access road, or driveway is separated from the roadway on which he is driving by a physical barrier or an unpaved area. The driver of a vehicle also need not stop when approaching a school bus which is loading or discharging passengers from or onto property immediately adjacent to a school if the driver is directed by a law-enforcement officer or other duly authorized uniformed school crossing guard to pass the school bus. This section shall apply to school buses which are equipped with warning devices prescribed in 46.2-1090 and are painted yellow with the words "School Bus" in black letters at least eight inches high on the front and rear thereof. Only school buses which are painted yellow and equipped with the required lettering and warning devices shall be identified as school buses.

The testimony of the school bus driver, the supervisor of school buses or a law-enforcement officer that the vehicle was yellow, conspicuously marked as a school bus, and equipped with warning devices as prescribed in 46.2-1090 is prima facie evidence that the vehicle is a school bus.

Overtaking/passing an emergency vehicle. Va. Code 46.2-829. Upon the approach of any emergency vehicle as defined in 46.2-920 giving audible signal by siren, exhaust whistle, or air horn designed to give automatically intermittent signals, and displaying a flashing, blinking, or alternating emergency light or lights as provided in 46.2-1022 through 1024, the driver of every other vehicle shall, as quickly as traffic and other highway conditions permit, drive to the nearest edge of the roadway, clear of any intersection of highways, and stop and remain there, unless otherwise directed by a law-enforcement officer, until the emergency vehicle has passed. This provision shall not relieve the driver of any such vehicle to which the right-of-way is to be yielded of the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequences of an arbitrary exercise of such right-of-way.

Violation of this section shall constitute failure to yield the right-of-way; however, any violation of this section that involves overtaking or passing a moving emergency vehicle giving an audible signal and displaying activated warning lights as provided for in this section shall constitute reckless driving, punishable as provided in 46.2-868.

Racing. Va. Code 46.2-865. Racing; penalty - Any person who engages in a race between two or more motor vehicles on the highways in the Commonwealth or on any driveway or premises of a church, school, recreational facility, or business property open to the public in the Commonwealth shall be guilty of reckless driving, unless authorized by the owner of the property or his agent. When any person is convicted of reckless driving under this section, in addition to any other penalties provided by law the driver's license of such person shall be suspended by the court for a period of not less than six months nor more than two years. In case of conviction the court shall order the surrender of the license to the court where it shall be disposed of in accordance with the provisions of 46.2-398. If you injure another, or cause the death of another while racing, you may be guilty of a felony for which you may be sentenced to the penitentiary for up to 20 year.

Improper brakes, or while vehicle not under proper control. Va. Code 46.2-853. Driving vehicle which is not under control; faulty brakes - A person shall be guilty of reckless driving who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes on any highway in the Commonwealth.

Driving to fast for traffic conditions. Va. Code 46.2-861. Driving too fast for highway and traffic conditions - A person shall be guilty of reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit.

Passing a vehicle at a crest or a grade. Va. Code 46.2-854. Passing on or at the crest of a grade or on a curve - A person shall be guilty of reckless driving who, while driving a vehicle, overtakes and passes another vehicle proceeding in the same direction, on or approaching the crest of a grade or on or approaching a curve in the highway, where the driver's view along the highway is obstructed, except where the overtaking vehicle is being operated on a highway having two or more designated lanes of roadway for each direction of travel or on a designated one-way roadway or highway.

Overloaded vehicle such as to obstruct/interfere with drivers control. Va. Code 46.2-855. Driving with driver's view obstructed or control impaired - A person shall be guilty of reckless driving who drives a vehicle when it is so loaded, or when there are in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle or to interfere with the driver's control over the driving mechanism of the vehicle.

Passing another vehicle at a railroad grade crossing. Va. Code 46.2-858. Passing at a railroad grade crossing - A person shall be guilty of reckless driving who overtakes or passes any other vehicle proceeding in the same direction at any railroad grade crossing or at any intersection of highways unless such vehicles are being operated on a highway having two or more designated lanes of roadway for each direction of travel or unless such intersection is designated and marked as a passing zone or on a designated one-way street or highway, or while pedestrians are passing or about to pass in front of either of such vehicles, unless permitted so to do by a traffic light or law-enforcement officer.

Failing to give proper signal. Va. Code 46.2-860. Failing to give proper signals - A person shall be guilty of reckless driving who fails to give adequate and timely signals of intention to turn, partly turn, slow down, or stop, as required by Article 6 (46.2-848 et seq.) of this chapter.

Failure to yield right-of-way when merging onto highway. Va. Code 46.2-863. Failure to yield right-of-way - A person shall be guilty of reckless driving who fails to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching on such highway within 500 feet of such point of entrance, unless (i) a "Yield Right-of-Way" sign is posted or (ii) where such sign is posted, fails, upon entering such highway, to yield the right-of-way to the driver of a vehicle approaching on such highway from either direction.

Passing two vehicles abreast. Va. Code 46.2-856. Passing two vehicles abreast - A person shall be guilty of reckless driving who passes or attempts to pass two other vehicles abreast, moving in the same direction, except on highways having separate roadways of three or more lanes for each direction of travel, or on designated one-way streets or highways. This section shall not apply, however, to a motor vehicle passing two other vehicles when one or both of such other vehicles is a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped; nor shall this section apply to a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped passing two other vehicles.

Driving two abreast in a single lane. Va. Code 46.2-857. Driving two abreast in a single lane - A person shall be guilty of reckless driving who drives any motor vehicle, including any motorcycle, so as to be abreast of another vehicle in a lane designed for one vehicle, or drives any motor vehicle, including any motorcycle, so as to travel abreast of any other vehicle traveling in a lane designed for one vehicle. However, this section shall not apply to any validly authorized parade, motorcade, or motorcycle escort, nor shall it apply to a motor vehicle traveling in the same lane of traffic as a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, or moped.


How Many Pardons Make a "Flood?"

The former governor of Virginia, Tim Kaine, granted 53 "simple" pardons, three "absolute" pardons, eight "conditional" pardons and restored voting rights to over 1,300 felons in 2009. This was described in the local paper as a "flood." I am unsure how 53 pardons in the sea of requests constitute a "flood," except that it was relatively generous compared to his previous 3 years and compared to his predecessors. In addition to the 53 simple pardons, Gov. Kain granted 3 absolute pardons and 8 conditional pardons. Notable, too, was the governor restoring the voting rights of over 1,300 felons.

In Virginia, upon a conviction of a felony, the newly labeled felon loses his right to vote, in addition to other rights otherwise conferred upon citizens of the Commonwealth. In its zeal to keep any felon from participating in the political process, Virginia does not automatically restore a felon's civil rights after he completes all punishment, whether such punishment is completing a jail sentence or probation. A convicted felon must beg the Governor to allow him to participate as a citizen by petitioning for the restoration of rights.

A restoration of rights restores the rights to vote, to run for and hold public office, to serve on juries and to serve as a Notary Public. However, it does not include the right to possess or transport any firearm or to carry a concealed weapon.


Stalking

Stalking is a crime that is taken seriously. Stalking can result in jail time and most likely will result in a protective order being issued against you. Not only will the protective order show up on a criminal records search, it will interfere with your right to transport and possess a gun.

You may be accused of stalking without even knowing you were acting in an illegal manner. Whatever the circumstances, when someone accuses you of stalking, you need a lawyer on your side to protect you.

Simply, stalking is repeated contact directed at another that can reasonably be understood to put that person in reasonable fear of death, bodily injury, or criminal sexual assault. It is a Class 1 Misdemeanor, which has a maximum penalty of up to 1 year in jail and a fine of $2500. If you are found guilty, you will also have a protective, or restraining, order issued against you. A third offense of stalking within 5 years is a Class 6 Felony with penalties of up to 5 years in prison.


What Part of "I WANT A LAWYER" Don't You Understand?

Clear, unambiguous and unequivocal. There you have it. As of June 4, 2009, this is the standard by which your request for an attorney is measured. Zektaw v. Commonwealth.

Mr. Zektaw was charged with rape, attempted sodomy, abduction, and assault and batter. Shortly after Mr. Zektaw waived his Miranda rights, he said, "Right, and I'd really like to talk to a lawyer because this - oh my God, oh, my Jesus, why?" The cops continued to interrogate Mr. Zektaw, even after he said this. He attempted to have the statements he made to the police tossed out so they would not be used as evidence against him in his trial. At trial, the Circuit Court decided that Mr. Zektaw did not make a "clear and unequivocal" request for a lawyer. Mr. Zektaw was found guilty of rape, abduction, and assault and battery and determined Zektaw's punishment to be eight years for the rape conviction, one year for the abduction conviction, and one year and a $2500 fine for the assault and battery conviction. Mr. Zektaw appealed to the Court of Appeals.

The right to have counsel present during a custodial interrogation is an axiom of American law expressed in Miranda v. Arizona , 384 U.S. 436 (1966) and cases that interpret Miranda. It's this simple: If the individual states that he wants an attorney, the interrogation must cease until an attorney is present...If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. 384 U.S. at 474-75.

In Arizona v. Roberson , 486 U.S. 675 (1988), the United States Supreme Court stated that it violates the holding in Miranda for authorities, at their instance, to begin an interrogation anew when an accused is in custody and when he has clearly asserted his right to counsel. 451 U.S. at 485. Only when the accused initiates further communication, exchanges, or conversations with the police and any conversation with the cops continue.

The invocation of the right to counsel must be clear, unambiguous, and unequivocal. In Davis v. United States , 512 U.S. 452, 459 (1994), the Supreme Court held that a statement either is an assertion of the right to counsel or it is not. An accused must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, the cops are not required to cease questioning the suspect.

So, was Mr. Zektaw's statement "Right, and I'd really like to talk to a lawyer because this - oh my God, oh, my Jesus, why?" a clear, unambiguous, and unequivocal invocation of counsel? The Virginia Supreme Court says YES. An objective, "reasonable police officer" would have recognized that Mr. Zektaw just made a clear, unambiguous, unequivocal request for counsel.

Here are examples of what has been deemed NOT a clear, unambiguous, unequivocal request for counsel:

"Can I have someone else present too, I mean just for my safety, like a lawyer like y'all just said?"

"Can I speak to my lawyer? I can't even talk to [a] lawyer before I make any kinds of comments or anything?"

"Do you think I need an attorney here?"

"You did say I could have an attorney if I wanted one?"

"Didn't you say I have the right to an attorney?"

"(I) would like to have somebody else in here because I may say something I don't even know what I am saying, and it might . . . jam me up"

"I'll be honest with you, I'm scared to say anything without talking to a lawyer."

Here are examples of what has been deemed to be a clear, unambiguous, unequivocal request for counsel:

"You have a right to consult with a lawyer and to have a lawyer present with you when you're being questioned. Do you understand that?' " and the defendant responded, " 'Uh, yeah. I'd like to do that."

"I want an attorney before making a deal."

So what's the lesson here? If you want a lawyer present when you are in police custody and being questioned, don't ask if you think you need a lawyer, DEMAND to have a lawyer. Don't begin talking again after you DEMAND to have a lawyer. DEMAND that you will invoke your Fifth Amendment right to counsel and you will, most respectfully, remain silent until your attorney arrives.


Score One for the Sixth Amendment

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right [among other things] [t]o be confronted with the witnesses against him."

Once upon a time in Virginia, you could go to jail based on the words and numbers written on a piece of paper. A cop submits a substances he presumes to be marijuana to the forensics lab, then a lab technician runs a few screening tests on this substance. The tech then places the findings in a "certificate of analysis." This certificate could be presented as proof positive that the substance was marijuana. This faulty system does not exist any longer.

The Supreme Court of the United States, in an opinion written by Justice Scalia, states, in no uncertain terms, that the mere presentation of the piece of paper is a violation of an accused's Sixth Amendment right to confront witnesses against him. This ruling was founded upon the 2004 Crawford decision and restores an accused's right to be confronted with the witnesses against him. After the recent exposure by the National Academy of Sciences that forensic scientists may face pressure to get results, and in the course of getting the result, sacrifice proper testing methods, allowing the cross examination of lab techs will weed out fraudulent and incompetent analysts.

In light of this ruling, some judges remove the possibility of jail time for a pot possession charge. With no jail time at stake, there is no requirement to appoint to you an attorney. Does this mean you do not have to hire a lawyer for pot possession any longer? Of course, I will say "NO!" Why? Unless you assert your Sixth Amendment right to examine the lab tech, you will be convicted. This is still a criminal conviction that will appear on your record, for the rest of your life. You cannot seal it, expunge it, hide it, or run from it. This conviction will haunt you until you die. What may appear to be the easy, cheap way out can ultimately be one of the most expensive decisions you make.

The full impact of this decision isn't yet known or how far the principles articulated by Scalia can reach. It is clear that an accused person cannot be convicted by a piece of paper any longer. As Justice Kennedy wrote, "The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial." Yes...yes the defense bar did. And it's about time.

 


Solicitation of Prostitution

Solicitation of Prostitution is defined by Va. Code § 18.2-346(B). This statute provides "a person who offers money or its equivalent to another for the purpose of engaging in fornication or adultery, or any act in violation of Va Code § 18.2-361, and thereafter does any substantial act in furtherance thereof" is guilty of solicitation of prostitution. Essentially, there must be a bargain of money-for-sex. Thereafter, there must be a substantial act that furthers the solicitation.

A conviction for solicitation carries with it not only the stigma of a Class 1 misdemeanor, in addition to a fine, but you most likely will have to undergo testing for HIV and Hepatitis C. Va. Code § 18.2-346.1 requires that any person having been convicted for a violation of Va. Code § 18.2-346 to receive counseling from personnel of the Department of Health concerning (i) the meaning of the test, (ii) acquired immunodeficiency syndrome and hepatitis C, and (iii) the transmission and prevention of infection with human immunodeficiency viruses and hepatitis C. In addition to the counseling, the convicted person must undergo tests for human immunodeficiency viruses. The results of the test will be disclosed to the person who is the subject of the test and to the Department of Health. The Health Department will then "conduct surveillance and investigation."

If you test positive for Hepatitis C, the State Health Commissioner may share this information with the sheriffs' offices, the state police, local police departments, adult or youth correctional facilities, salaried or volunteer firefighters, paramedics or emergency medical technicians, officers of the court, and regional or local jails. While the dissemination of this information is supposed to be "to the extent necessary to advise exposed individuals of the risk of infection and to enable exposed individuals to seek appropriate testing and treatment," there is broad authority to disseminate this information "as may be needed to prevent and control disease and is deemed necessary to prevent serious harm and serious threats to the health and safety of individuals and the public." It is supposed to be held confidential and not disclosed by any person who receives the information from the State Health Commissioner.

 


What Happens When Cross Your Arms and Make a Threat?

The short answer to that question is that you may find yourself convicted of assault. Here's the story, around May 7, 2007, a bus driver and parent disagree about the treatment of that parent's child. The child was not allowed to ride the bust for a few days.

The next day, the parent, who was also an employee of the school, parked her car in the bus circle. The bus driver pulled her bus up directly behind the parked car and was blocked in by the parked car. The parent approached the bus driver, still in her bus, loaded with children, and said "I told you I'm going to get you, bitch, don't care, I don't care where you at, if you're on the school ground, if you're in the school, or you're in the grocery store," "[I'm going to] [f]uck you up." Her arms were crossed.

Bus driver calls school officials and the police stating that this parent was "harassing her saying that she's going to pull her off the bus and beat her up." All this while, the parent was a few feet from the bus, cursing at the bus driver, until the principal arrived.

Later that day, the bus driver was assigned to the after school activity pick up. This parent again stood outside the bus door and said "Bitch, like I say, I'm going to get you." The bus driver closed the bus door and stayed inside the bus instead of getting out.

The parent was charged and convicted of assault, and appealed the matter to the Court of Appeals.

Assault is not defined in the Virginia Code. Rather, Virginia looks to the common law definition of assault. Generally speaking, however, an assault occurs under the traditional criminal definition "when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm." Carter, 269 Va. at 47, 606 S.E.2d at 841. An assault occurs under the merged tort law definition when an assailant "engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim." Id. Whatever the definition, the law is clear that words are never enough to constitute an assault.

Under the criminal definition of assault, the overt act must have been committed with the actual " inten[t] to inflict bodily harm" and the perpetrator must have a present ability to inflict such harm; under the tort law definition, by contrast, the overt act may be committed merely with the "inten[t] to place the victim in fear or apprehension of bodily harm" where the act "creates such reasonable fear or apprehension in the victim."

The court found that the parent's physically blocking both the bus and bus driver by not allowing the bus driver to get out of the bus in the afternoon, indicated appellant's intent to make good on her threat supported the parent's conviction for assault.

 


Clemency: Restoration of Rights and Pardons

Currently, there are approximately 377,000 residents of Virginia who cannot vote as a result of a felony conviction. It's estimated that about 300,000 of those individuals have completed sentence. The effect of a felony conviction in Virginia is severe and life long unless you take action to restore your rights to your pre-felony state. When a person is convicted of a felony, he loses the rights to vote, to run for and hold public office, to serve on juries and to serve as a Notary Public. It does not include the right to possess or transport any firearm or to carry a concealed weapon. After you've served your sentence and re-entered your life, what can you do to restore your life to normal? You may seek clemency from the Governor.

There are two types of clemency: Restoration of Civil Rights and Pardons. Under the Virginia Constitution and the Virginia Code, all clemency authority is vested solely in the Governor. Clemency is not guaranteed and the petitioner has no right of appeal if the petition is denied.

There are two different petitions and processes to restore your rights, depending on the nature of the felony convictions. Non-violent felony offenders may use the short form to apply for restoration. Violent or drug-distribution felony offenders have to use the long form. In order to be eligible for the restoration of rights, regardless of felony type, you must meet certain requirements:

  • You must be a resident of Virginia or have been convicted of a felony in a Virginia court, a court in any other state (including the District of Columbia), a U.S. District Court, a military court, or any court of an associated Commonwealth, territory, or possession of the United States.
  • You must have been released from supervised probation for a minimum of three years for a non-violent offense or five years for a violent, drug distribution, or drug manufacturing offense and have no other convictions (felonies or misdemeanors) during that time.
  • You must have paid all costs, fines, and/or restitution or any obligations to any other court, including traffic courts.
  • You cannot have a conviction for Driving While Intoxicated within the past five years immediately preceding your application.

The Secretary of the Commonwealth will conduct a criminal history check on all applicants. You can expect the restoration process to take at least six months from the time an application is considered complete. If your petition for restoration of rights is denied, you have no right of appeal, but may re-apply after a two-year period.

There are three types of pardons: simple, conditional, and absolute. Pardons are unusual and exceptional. If a person feels able to provide substantial evidence of such exceptional circumstances, he or she may submit a petition for pardon to the Governor.All three types require the petitioner to write a letter to the governor stating why the pardon should be granted. If you have been convicted of a felony, you must first have your rights restored before your petition for a pardon will be considered.

A Simple Pardon is a statement of official forgiveness. Your record is not expunged, however. A simple pardon may serve assist a petitioner to advance in employment and education. Evidence of good citizenship is required, as are favorable recommendations from the officials involved in the case and from the Virginia Parole Board. Simple pardon petitions are sent to the Virginia Parole Board. If the Board finds a petition has merit, it will conduct an investigation. This investigation can take as long as a year to complete.

A Conditional Pardon is available only to people who are currently incarcerated. It is usually granted for early release and involves certain conditions; if you violate these conditions, you could be put back in prison. This is truly extraordinary for an inmate to be considered for a conditional pardon. A conditional pardon is an act by the Governor to modify or end a sentence imposed by the court. The Governor only grants a conditional pardon when there is substantial evidence of extraordinary circumstances to warrant it. Another form of conditional clemency is a medical pardon, which is available to inmates who are terminally ill with a life expectancy of three months or less. Of course, medical pardons are expedited. As with Simple Pardons, the Virginia Parole Board will investigate and its investigation may take up to a year to complete. If the petition for a conditional pardon is denied, it may be filed again after two years from the date of denial.

An Absolute Pardon is reserved for the unjustly convicted and the innocent. An absolute pardon is the only form of clemency that would allow you to petition the court to have that conviction removed from your criminal record. The petitioner must have pleaded Not Guilty throughout the judicial process in order to be eligible for an absolute pardon, and all judicial appeals and other remedies must be exhausted before appealing to the Governor. In 2004 the Virginia General Assembly passed legislation giving individuals convicted of crime the opportunity to have the court itself consider claims of innocence, even after a conviction. If the court finds it made an erroneous conviction, it would then issue a Writ of Actual Innocence. In most circumstances, this avenue for pardon must also be tried before appealing to the Governor.

If all remedies have been exhausted as required by law, you may then submit a petition for an absolute pardon to the governor, along with evidence that the court has rejected your claim under the new law above, or an explanation of the legal basis for why you believe the new law is not applicable to your situation. If a petition is denied, another cannot be filed for two years after the date of the denial.


You Want a Job? Not with Your Record!

Companies are downsizing. Friends are now unemployed. Families worry that their mortgages will remain current. It's a tough world out there right now and in today's job market, you need to give yourself every advantage. It's almost commonplace for an employer to do a criminal background check as part of the job application process. You may be at a disadvantage by the results of a criminal background check if you have an arrest record. Just the presence of a criminal record can mean the loss of a job. A current employee who was not required to undergo a criminal background check when hired may be required to do so as part of a new business protocol. Jobs can be jeopardized when a past criminal record is revealed.

So, what can you do? You get your record sealed.

Healing your criminal record is called an expungement. It is unlawful for any person having access to an expunged court record to open, review, or disclose any information in the expunged record unless they first get an order from the court that ordered the record expunged. An employer can not, in any application, interview, or otherwise, require an applicant to disclose information concerning any arrest or criminal charge that has been expunged. Further, as an applicant, you need not, in answer to any question concerning any arrest or criminal charge that has not requited in a conviction, include a reference to or information concerning arrests or charges that have been expunged.

Agencies, officials, and employees for the Commonwealth and local governments are prohibited from requiring an applicant for a license, permit, registration, or governmental service to disclose information concerning any arrest or criminal charge against him that has been expunged. You do not, in answer to any question concerning any arrest or criminal charge that has not resulted in a conviction, include a reference to or information concerning charges that have been expunged. Your application can not be denied solely because of the your refusal to disclose information concerning any arrest or criminal charge against you that has been expunged.

Protect your job, your home, and your family. Expunge your record.


DMV and Demerit Points

When you are convicted of a traffic offense, DMV will probably assess "Demerit Points." If you accumulate 12 demerit points in 12 months, or 18 points in 24 months, you will be required to go to a driver improvement clinic and complete the driving clinic within 90 days. If you accumulate 18 demerit points in 12 months, or 24 points in 24 months, your license will be suspended for 90 days in addition to completing a driver improvement clinic before you can get your license back. After you get your license back, you will be in probation for 6 months. While there are some online driving classes you can take, if you are under 20 years old, you have to go to the class in person.

There are a few different rules if you are convicted of a traffic violation committed when you were under 18 years old. You will have to complete driving school. If you do not complete, and pass, driving school within 90 days, your license will be suspended. Up for your second traffic violation and points assessment? DMV will suspend your permit or license for 90 days. After a third traffic violation, your license will be revoked for a year or until you are 18 years old, whichever is longer. You must attend driving school in person if you are under 18. Online classes are not accepted.

Restricted driving privileges granted by DMV are valid only in Virginia and allow you to drive only to and from work; during employment hours only if driving is a required part of your job; to and from school if you are a student; for health care services, including medically necessary transportation of an elderly parent or of a person residing in the driver's household with a serious medical problem; to transport your minor child to and from school, day care or for medical treatment; to and from a court-ordered visitation with your child; to and from court appearances when subpoenaed as a witness or a party; to and from appointments with a probation officer; or to and from any programs required by the court or as a condition of probation.


Confidentiality of Records in Juvenile and Domestic Relations Court

Although Virginia recognizes that juvenile offenders must be treated differently from adults, and place more emphasis on alternatives to incarceration, juveniles charged with criminal offenses can still face serious, potentially life-long consequences. Because the General Assembly promotes a policy to include juvenile adjudications for sentencing enhancement purposes, juvenile adjudications will be included as prior crimes for determining range of punishment for subsequent adult convictions. Another remarkably harsh consequence is the loss of future juvenile status. Thus, if a child is deemed an adult for an adjudication at the age of 14, he will be treated as an adult for all subsequent adjudications. Juveniles fourteen (14) and over who are convicted of a felony will have a felony record for life. That record will forever be open to the public, colleges, the military, and prospective employers. Worse still, juveniles can be tried as adults and if convicted can be sentenced to adult prison, even as young as fourteen years old.

Juvenile proceedings are "conducted outside of the public's full gaze, and the youths brought before our juvenile courts have been shielded from publicity. This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide youthful errors and "bury them in the graveyard of the forgotten past." For this reason, records pertaining to a juvenile court case are confidential, with very few exceptions.

All juvenile case files are required to be filed separately from adult files and the juvenile court records may be viewed only by:

  • The judge, probation officers and professional staff assigned to serve the juvenile and domestic relations district courts;
  • Representatives of a public or private agency or department providing supervision or having legal custody of the child or furnishing evaluation or treatment of the child ordered or requested by the court;
  • The attorney for any party, including the attorney for the Commonwealth;
  • Any other person, agency or institution, by order of the court, having a legitimate interest in the case or in the work of the court.

In addition, a community-based probation services agency, for the purpose of preparing a pretrial investigation report or a presentence or post sentence report, or for preparing a report for the Parole Board, adult probation and parole officers, may access to an accused's or inmate's juvenile court records. The purpose of the community-based probation services access is limited to preparing the discretionary sentencing guidelines worksheets and related risk assessment instruments for the Commonwealth's Attorney.

Any Commonwealth's Attorney and any local pretrial services or community-based probation officer or state adult probation or parole officer may access a defendant's juvenile court delinquency records maintained in electronic format by the court. The purpose for accessing these electronic records is strictly limited purposes of preparing a pretrial investigation report, including any related risk assessment instrument, any presentence report, any discretionary sentencing guidelines worksheets, including related risk assessment instruments, any post-sentence investigation report or preparing for any transfer or sentencing hearing.

A gaping exception to the confidentiality of juvenile records is when a juvenile is 14 years of age or older at the time of the offense is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult. These court records are open to the public. However, if a hearing was closed, the judge may order that certain records or portions of the records may remain confidential to the extent necessary to protect any juvenile victim or juvenile witness.


Expungement and Being a "First Offender"

In Virginia, you may seek an expungement if you are charged with the commission of a crime and (1) are 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. Va. Code § 19.2-392.2(A). Where does this leave a person who is granted the "first offender" status under Va. Code § 18.2-251?

Recently, the Court of Appeals analyzed the case of a person charged with possession of marijuana under Code § 18.2-250.1 and who pled nolo contendere in Circuit Court. The court accepted the plea, and deferred the proceedings pursuant to Va. Code § 18.2-251. Upon successful completion of the terms imposed by the court, the court would dismiss the charge. the defendant successfully completed all obligation imposed by the court and the charge was dismissed.

Years after this first proceeding, the accused made entered a petition for expungement. The trial court granted the motion. The Commonwealth appealed.

The defendant pled not guilty to a misdemeanor charge of possession of marijuana and was convicted in the General District Court. The conviction was appealed to the Circuit Court, where the defendant pled nolo contendere in exchange for the Commonwealth recommending treatment as a first offender pursuant to Code § 18.2-251.

The court ordered one year probation, suspended the driver's license for six months, ordered the payment of the cost of the proceedings within six months, successful completion of any substance abuse program as directed by the probation officer, completion of twenty-four hours of community service, and remain free from using drugs and alcohol. On October 23, 2002, the circuit court ruled that the defendant satisfied all obligations and dismissed the possession of marijuana charge. At no time did the trial court state that there was a finding of guilt or that there was evidence sufficient for a finding of guilt.

The defendant served the Commonwealth with a petition for expungement stating that the charge was dismissed upon successful completion of the court-ordered obligations, much like an accord and satisfaction. After a hearing, the trial court found that "unwarranted damage occurred...and may occur in the future" if the arrest record is not expunged. The trial court also found that, even though the court had treated the defendant as a first offender, the court's order doing so failed to "reflect a finding of guilt or that the evidence would have been sufficient for a finding of guilt." This dismissal was compared to an accord and satisfaction, which would qualify the defendant for expungement because it was "otherwise dismissed" within the meaning of Code § 19.2- 392.2(A).

The Commonwealth argued that expungement is designed for "innocent" citizens and a charge dismissed pursuant to a first offender statute is not "otherwise dismissed" as required by Code § 19.2-392.2(A); thus, it may not be expunged. Remember, though, that the first offender statute (§ 18.2-251) requires a court to find evidence sufficient for a finding of guilt prior to placing a defendant on first offender status. The court never found sufficient evidence to find the defendant guilty.

Why wasn't the record expunged? Nolo contendere is not a confession of guilt and has no effect beyond permitting the court to impose sentence in a particular case. A defendant "implies a confession . . . of the truth of the charge . . . [and] agrees that the court may consider him guilty" for the purpose of imposing judgment and sentence. A defendant cannot be considered "innocent" as contemplated by the expungement statute when he or she enters a plea of nolo contendere and the trial court finds that the evidence was sufficient to prove his or her guilt.


But...I PAID MY RENT!!!

We all know what happens when you don't pay your mortgage payments. Your lender will foreclose.

We all know what happens when you don't pay your rent. Your landlord evicts you.

But what do you do when you pay your rent, every month, and your landlord isn't paying the mortgage? His lender is going to foreclose, you'll be evicted by the new owner after the foreclosure. Is there anything you can do?

Under the Virginia Landlord Tenant Act, there may be something you can do.

Usually, when a tenant signs a lease, there is a clause in the lease called a subordination clause. This means that you, the tenant, agrees to accept possession of the premises subject to any mortgage that may be out there and you will agree that your lease is "subordinate" to any mortgage that may be placed on the property. Your lease will always be subject to the rights of a lender under a mortgage or deed of trust. Essentially, a tenant is at the mercy of the landlord's lender.

Under the Virginia Landlord Tenant Act, however, a tenant may be able to have his rent paid to the landlord's lender thus avoiding a foreclosure and subsequent eviction. A tenant may file a Tenant's Assertion and escrow your rent payments into the court. In order to use this rule, a tenant must assert that the landlord has not complied with the rental agreement and this failure to comply with the rental agreement is a "material noncompliance." It would appear, therefore, that before a tenant can use a tenant's assertion, the lease may have to contain some provision that requires the landlord to remain current on any payments secured by a mortgage on the premises.

Assuming a tenant successfully files his case, he will then have to show to the court that the tenant was served written notice of the condition upon which the tenant's assertion is based and that the landlord has refused, or having a reasonable opportunity to do so, has failed to bring the mortgage current or otherwise remedy the problem. The court has discretion to determine what period of time is reasonable, but there is a rebuttable presumption that anything over 30 days is unreasonable. A landlord may respond to the court by showing that the condition the tenant complained of does not exist or has been remedied.

A tenant then must pay the rent into the court within 5 days of the date the rent is due.

The court then must make findings of fact on the issues presented and must then issue an order that may include ordering escrow funds disbursed to pay a mortgage on the property in order to stay a foreclosure.

Should the tenant be in the premises, paying his rent into the court, and the nonpayment of the mortgage has been ongoing for six months and the landlord has refused to remedy the problem, the Virginia Code indicates that the court MUST award all money accumulated in the escrow to the tenant.

The initial hearing on a tenant's assertion must be held within fifteen calendar days from the date of service of process on the landlord.

Every lease is different, and every case is different. You are cautioned that anything contained herein is not legal advice. In order to receive appropriate legal advice, please call me to talk about your specific facts.


The Cops Want to Talk To You...Now What?

You have no real idea why he's standing in front of you, but there he is...a detective with the local police department. He says he wants to "clear up" a few things and you have no way to know why he thinks you have any information to give him. You realize that we need law enforcement and were raised believing that police were the "good guys."

Let's be absolutely clear on one point. Police do not, ever, just pay visits to be nice. The cops are looking for information to build a case, whether it is against you or someone you may know, or someone you merely may have observed. You don't know if someone called the cops to report an incident and if the person the cops are interested in is you. You have no idea of knowing what the cops are after.

Before you chat up the police, think very carefully about saying anything. You must remember that anything that you say to the cops, or anything that you do, can be used against you. Do not argue with the cops. Don't run from the cops. Don't touch the cops. You must remember that what you say and do may GIVE the police an excuse to arrest you.

Do not consent to a search of your body or your house or your car. Except in limited circumstances, the police need a search warrant signed by a judge to search your home or car. If the police tell you that they have a warrant, ask to see the warrant.

If you are ultimately arrested, you have a right to know why you are being arrested. Make no statements and ask for your lawyer immediately. You may recite to the police your name and address. Don't try to explain anything. There is absolutely nothing you are going to do or say that will make this any better for you. The arrest will happen and resign yourself to the fingerprints, mug shot, and maybe even a holding cell. Your defenses belong in court.

Any phone call you make from the police station may be monitored so say as little as possible.

Though the police serve a role in our society, we all have to remember that we have rights and have the right to not be harassed by the police.


Expunging Your Record

Because the police and prosecutors sometimes arrest and prosecute innocent citizens, and having an arrest record for any crime is not conducive to obtaining the job you are seeking, the General Assembly has devised a way to remove this blemish from your criminal record. It is called an Expungement.

To be eligible for an expungement , your charge had to be based on a crime contained in Title 18.2 of the Virginia Code. Further, you must have been acquitted, or the prosecution took a "nolle prosequi" or the charge was otherwise dismissed, including a dismissal by accord and satisfaction.

Expunging the police and court records require filing a petition explaining the salient facts. In addition to filing the petition with the Circuit Court, a petitioner must obtain a complete set of fingerprints from a law-enforcement agency and provide that agency with a copy of the petition for expungement. The law-enforcement agency then submits the fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition and the CCRE then forwards to the Circuit 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. After the Circuit Court receives the information from CCRE, the court will conduct a hearing to determine if the continued existence of the charge on the petitioner's record and the dissemination of the information related to the charge causes or may cause a "manifest injustice" to the petitioner. Upon this finding, the Court will enter an order requiring the expungement of police and court records, including electronic records.

For anyone charged with a misdemeanor, and the petitioner has no prior criminal record, the petition is entitled to a an expungement unless the Commonwealth can show good cause as to why the charge should not be expunged. Should you be the unfortunate person arrested by the cops and then, a bit too late to save your reputation, the Court finds that you are not the person the cops should have arrested or charged, you are entitled to an expungement. The Court is required to enter an order expunging all police and court records if you receive an absolute pardon for the commission of a crime that you did not commit. Additionally, anyone receiving a writ vacating a conviction pursuant to § 19.2-327.5 or § 19.2-327.13, the court is required to enter an order expunging your record.

No one may have access to any expunged court or police record, nor may anyone disclose to another person information in regarding the expunged record without a court order. Moreover, no employer or educational institution can require an applicant for employment or admission to disclose information concerning any arrest or criminal charge against that has been expunged. If asked a question relating to the expunged record, you need not answer.