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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.