What a Recent Federal Expungement Case Teaches us About Virginia Expungement Law

What a recent court case can teach us about expungement in VirginiaRecently, the 4th US Circuit Court of Appeals analyzed an issue not often considered – federal expungement law – in the case of US v. Mettetal. In an article in the Virginia Lawyers Weekly, the odd facts of the case were discussed. There, the individual seeking expungement had his conviction for having toxic chemicals for use as a weapon vacated because law enforcement illegally arrested him. Despite his lack of a sustained conviction, the individual still faced difficulties because of his criminal record some fourteen years later.

Though this case dealt with a federal criminal record, there are a few points that it teaches us about Virginia Expungement Law.

Unlike the Federal Government, Virginia Has an Expungement Statute

As the Mettatal Court demonstrates, there’s no federal statute (or constitutional rule) that provides a federal court authority to expunge criminal records. However, over the years, federal courts have invoked ancillary jurisdiction to consider expungements, but such power “must be sparingly exercised.” Indeed, no federal appeals court has granted an expungement. Given that, the Mettetal Court followed suit here.

In, Virginia, however, the General Assembly provides the courts with expungement power in Virginia Code Section 19.392.2. Indeed, I’ve written previously about the statue in great detail here.

Therefore, should your criminal charge in Virginia be eligible for an expungement, you stand a much higher chance for expungement than if you faced a federal crime.

Criminal Charges, Even if You Weren’t Convicted, May Affect Your Life

In the Mettetal case, the person seeking expungement was a doctor.  Some fourteen years after his convictions were vacated, he was still facing roadblocks. Indeed, as a practicing physician, the doctor alleged that the local medical community continued to harass him over the charge, he had been denied hospital privileges because of the record, and he was unable to obtain a handgun license in Tennessee.

I always remind my clients whom been acquitted (or the government dropped the charges) – you still need to try to expunge the charges!  That’s because even though you were not convicted, your arrest record is still there, and the community may perceive your charge just as severely as a conviction.

Think about it from an employer’s perspective. Imagine that you have two candidates – one with no criminal record, and one that was charged with a serious offense that was later dropped. Who would you hire?! Just because you won your Virginia case, don’t forget to take the extra step of an expungement.

You May or May Not Need an Attorney for Your Expungement. 

Some charges are pretty straightforward. And while filing the appropriate paperwork is a hassle, the law is pretty clear an expungement is appropriate.

Let’s say you were charged with a misdemeanor assault and you were later acquitted, and you have no other criminal record. Under the Virginia expungement statute, you are entitled to an expungement unless the Commonwealth can show good cause why you shouldn’t get one. In that instances, you may not need an attorney to help you out.

But in the more complex cases, for instance, felonies, it may be wise for you to seek counsel. Under Virginia law, for felony expungements, you need to show good cause why you deserve the expungement.  Additionally, if you have a criminal record, a court may indeed find that an additional criminal charge on your record may not make a difference. 

When in doubt, seek the opinion of an attorney who knows about expungement law because residual criminal records may affect your life more than you’d expect.

James S. Abrenio
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Focusing on criminal, traffic defense and personal injury cases