Alexandria Expungement Lawyers

Virginia law prohibits disclosure of expunged records

Virginia Code § 19.2-392.4

However, there may be an occasion where someone will be asked to disclose on a federal employment application whether the person has ever been arrested or charge, even if the charge has been expunged.

In such a situation, this is not governed by Virginia Code § 19.2-392.4 (B), which applies only to state and local governments in Virginia, and disclosure may be required.

If an employer or entity outside of Virginia requested disclosure of a Virginia expunged record, the firm would need to review the law of the particular state to determine whether it would be appropriate to report the arrest.

[1] It is possible, however, to expunge a misdemeanor offense, even after a finding of guilt, that was reopened and dismissed in a general district court or appealed and dismissed by a circuit court. A case appealed to the appellate courts and subsequently overturned and dismissed could also be eligible for expungement.

[2] The Virginia Supreme Court ruled that a petitioner is entitled to expunge a charge that has been amended to another offense if the elements of the new offense are not “subsumed” within the original charge and do not form the sole basis for the conviction on the new offense.

Virginia Code §19.2-392.1

Virginia law also prohibits disclosure of expunged records by a court or police and makes it a crime to do so, subject to very narrow circumstances.  Virginia Code §19.2-392.3 below:

1. 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.
2. 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.
3. Any person who willfully violates this section is guilty of a Class 1 misdemeanor.

Virginia Code §19.2-392.3

Employers operating in Virginia, Virginia educational institutions, and Virginia state and local government entities are prohibited from inquiring about expunged records. Virginia Code § 19.2-392.4 states:

1. An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest or criminal charge against him that has been expunged. An applicant need 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 arrests or charges that have been expunged.
2. Agencies, officials, and employees of the state and local governments shall not, in any application, interview, or otherwise, require 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. An applicant need 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. Such an application may not be denied solely because of the applicant’s refusal to disclose information concerning any arrest or criminal charge against him that has been expunged.
3. A person who willfully violates this section is guilty of a Class 1 misdemeanor for each violation.

Virginia Code § 19.2-392.4

However, there may be an occasion where someone will be asked to disclose on a federal employment application whether the person has ever been arrested or charge, even if the charge has been expunged.

In such a situation, this is not governed by Virginia Code § 19.2-392.4 (B), which applies only to state and local governments in Virginia, and disclosure may be required.

If an employer or entity outside of Virginia requested disclosure of a Virginia expunged record, the firm would need to review the law of the particular state to determine whether it would be appropriate to report the arrest.

[1] It is possible, however, to expunge a misdemeanor offense, even after a finding of guilt, that was reopened and dismissed in a general district court or appealed and dismissed by a circuit court. A case appealed to the appellate courts and subsequently overturned and dismissed could also be eligible for expungement.

[2] The Virginia Supreme Court ruled that a petitioner is entitled to expunge a charge that has been amended to another offense if the elements of the new offense are not “subsumed” within the original charge and do not form the sole basis for the conviction on the new offense.