WTDW Podcast | Episode 47: What To Do When… Expungement in Virginia.

by | May 26, 2023 | Audio, Court Records, Criminal Defense, Criminal Records, DUI, Family Law, Jackie Critzer, Juvenile Criminal Defense, Juvenile Law, Scott Cardani, Self Defense, Video, WTDW Podcast

What To Do When... Expungement in Virginia.

Expungement, Expungement in Virginia, Felony, Criminal Charges, Court Records, Job Application Criminal History, Nolle prosequi, Nol Pros.

What To Do When… Expungement in Virginia.

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WTDW Podcast | Episode 47: What To Do When… Expungement in Virginia.

What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.

Jackie Critzer 0:29

Hi, and welcome back to Critzer Cardani, What To Do When… a podcast here in Richmond, Virginia.

Scott Cardani 0:34
Hey, Jackie, what’s on the docket for today?

Jackie Critzer 0:36
Today is expungement.

Scott Cardani 0:39
Well, that’s a tricky one, we get a lot of confusing calls about expungement. What it is what it means. I think the biggest thing that we need to talk about today is expungement is not when you’ve been convicted of a crime, and you want your record clean. Expungement is when you’ve been charged… Well, usually, the simple version is when you’ve been charged with a crime and for some reason that crime didn’t go forward, they dropped the charges against you. The prosecutor no process the charges for some reason someone is not prosecuted. That that’s a word that’s actually it’s actually Nolle prosequi. No, that’s a little extra Latin X actually how a judge used to say it, and I used to laugh about that. But no lo prosecute means that Commonwealth chooses not to prosecute the case, that means they have a case against you. And for whatever reason, they don’t believe their evidence is probably strong enough to go forward. So they talk to the judge and say, Hey, we’re not going to go forward with this case. That doesn’t mean they can’t bring it back. And I missed me to have a year and a felony, they have a couple years to bring that back seven years, I think is the key.

Jackie Critzer 1:42
What you said they can bring it back not to derail the expungement. But can you get something that’s nol. pros.? In other words, the charges they’ve they haven’t move forward on the charges. And they’re, it’s within the year you said I think for a misdemeanor and they say it’s six months? And can you get that expunged, even if they still have the window of opportunity to move forward on charges that they bring again?

Scott Cardani 2:05
That would be up to the Commonwealth, the Commonwealth had no intention of bringing it back, they probably wouldn’t fight it. But they could fight it and say, Well, you need to wait your year. And usually you do wait that time period. But the other thing about expungement is that not a lot of people know this doesn’t destroy your criminal record. What it basically does more than anything is kind of hide your criminal record from everybody. So honestly, this is one of my pet peeves. With as long as I’ve been in a law, I feel like if I get charged with a crime or better yet, you would be more likely. So say, Jackie gets some kind of a charge money laundering, money laundering and this, the cop takes out money laundering charging after a long event in investigation and then a turn out well didn’t wasn’t Jackie was her sister. Anyways, regardless of that, that’s what we’re talking about that when that happens, you have the right to expunge.

Jackie Critzer 3:03
And so what does that mean? What is even expunged me and I’ve been charged, they decided they weren’t going to move forward with the charges. So now the charge is gone for whatever reason.

Scott Cardani 3:11
Yeah, it means it’s taken out of the view of the public and out of the view of everybody now, sometimes there’s a way to go back and and get it and for law enforcement, they give special permission, they’ll look at your your unofficial official record. But really, for the basic though, for jobs and employment and all those things, it’s off your record. So when they pull your criminal history and or you pull your criminal history, it’s the state police. Anyways, when you pull your criminal history, it’s off your record. So like I’m a plot, you’re applying for a job now with a Critzer Cardani, that great law firm in Richmond. I’ve heard of it anyways. And they look at your record. And you know, you had this expungement I mean, this embezzlement charge, would we say it was long laundering, sorry, your laundry was hanging out and you go, I hope that’s not on my record. And you look because you went and sought an attorney’s advice and you got to expunge, they can’t see it. And that’s what it’s really about.

Jackie Critzer 4:07
All right. So on some applications, you’ve probably seen it. Well, maybe not because you’ve been practicing even longer than me, but the application it reads Have you ever been convicted? But also now we’re seeing Have you ever been charged with a crime? Fill in the blank? So most of the time? I think they’re crimes of dishonesty, money laundering, probably a crime of dishonesty. Let’s just go with that. It’s not lying. All this not stealing. It’s washing ill gotten money. So it’s not it’s it’s a little gray. But I’ve been charged with that. I went to Scott Cardani He got it expunged for me. It’s not going to show up on a background check. It’s not going to show up on on even maybe even an arrest record baby. But well I can’t lie on I mean, we’re not advocating that people lie on an application.

Scott Cardani 5:00
This is my biggest frustration when they ask those questions. You know, I don’t think it’s fair to ask that question. Because just because you’ve been charged with some doesn’t mean you did anything wrong. I mean, we see this all the time, especially in assault and battery cases where one person claims the other person hit them, and we go to court, and there’s no evidence and it gets dropped. And all sudden, you know, it’s just a way to control somebody, which we see a lot of. So, it’s not a really fair question, I think. But I think the better course of action to say I was charged with it, they took it off my record, because it wasn’t real.

Jackie Critzer 5:25
But the expungement will remove it from someone being able to see that you were in charge of that.

Scott Cardani 5:38
Exactly right.

Jackie Critzer 5:39
Could they see it if we even if you were charged, but not convicted? Not really not on a background check.

Scott Cardani 5:45
Yes they can. That’s the biggest thing that people miss. So and this is why expungement is so important. It’s why wouldn’t bring it up? Perfect question, Jackie, as usual, here’s the deal. If Jackie gets charged with an assault and battery against me, which happens all the time. Anyway, if she gets charged with assault battery gets me in it later was either nol pros (Nolle prosequi), or she was acquitted, not guilty, whatever it was, and she doesn’t want that on the record, then she has to go through the process of expungement. Other than that, once you get charged, that goes into the criminal system that charges there forever, until you remove it. Even if you did nothing wrong. There are there is a lot of movement in the General Assembly. And I could go through that. And this is not the place, some crimes are getting removed now. And through timing and issues that are have to be removed off your record and all those kinds of things. There are some automatic expungement stuff going on. But I didn’t want to get into all that. That’s why you really need to seek a lawyer.

Jackie Critzer 6:42
Well, who can do an expungement? Does it have to be an attorney? Or could I walk in and do it myself?

Scott Cardani 6:48
Well, pro se can definitely do it, you have to petition the circuit court. Unless I think the only exception and I could be wrong, and there’s probably a lawyer that’s going to email me and say I am wrong. But I’m pretty sure the only exception is when it’s a crime of false identity. Okay, the wrong name, you usually have to go to the specific court that charged under your name and ask them to withdraw it is not your name. But other than that, it’s always the circuit court in the county that you were convicted or not convicted, excuse me, not convicted and charged in and you go to the circuit court, you put the petition to the Commonwealth attorney, and it goes from there. And remember, this applies to things like could be in civil records, too, that you don’t want people to see on your record. So there’s a lot of things you might want expungement for that just aren’t criminals. But I will get into that later. And I don’t think this is the one to get deep into that sounds.

Jackie Critzer 7:40
So does it when can you get it expunged? Is it is it? I mean, what happens if you’re found guilty, but it’s been five years? 10 years? 30 years? Can you ever get an expunged at that point?

Scott Cardani 7:51
Yeah, if you’ve been found guilty, it’s a no. And there are some exceptions to that you really need to talk to a lawyer. But I think the biggest thing is number one, you need to know who’s entitled to an expungement. It’s usually a defendant who has a criminal case that said not guilty. If a person has civil action, who was charged with contempt of court are found not guilty of that. But contempt of court is a big one, because it says you’re not showing up for work. You know, the nol pros we talked about earlier. And those kinds of things. Now, there are exceptions, like one of the big ones that I want to bring up real quick is assault and battery. If you take what they do they take it a lot of people say the court will take it under advisement under the statutes 18.2 57.3. But it gives the court an ability to hold the matter for a year. And if you do nothing else they’ll dismissed after that year, that’s not expungeable, because you took a deal. So those are little things, nuances that we have to have.

Jackie Critzer 8:47
So deferred dispositions are not exchangeable.

Scott Cardani 8:50
Not automatically, no. So that’s the thing. But here’s where you start. I think, number one, you got to know what you’re dealing with what expungement is what it is, and I think we covered it. Number two, I think most importantly, is you want to start with spending the 15 bucks or 20 bucks, what are the state police are charging now to get you a copy of your criminal record? Because you may think something’s on your criminal record, and you pull it is out there. If it’s not there. It’s not there. Well, I tried to create something that’s not there. So you go to the state police, you ask for criminal record, they’ll show you and then you can go through it. In Jackie’s case, you’d go through and say, Well, I did that assault, but I didn’t do that one, you know, or whatever it is. And so you get this little…

Jackie Critzer 9:30
I was charged with that money laundering but not found guilty.

Scott Cardani 9:32
So that gives you your kind of your roadmap of what you need to attack. And then the third step is you make a point with some good lawyers like Critzer Cardani. And we walk you through the process and you know, sometimes you think you have a winner and it’s not a winner. It’s just unfortunate sometimes do the research or things that you thought happened. That didn’t happen. Quite frankly, sometimes I’ve had so many people thought they were charged with a felony and it wasn’t a misdemeanor and didn’t think they were charged to felony It was a felony. And there’s all kinds of stuff like that. So, you know, that’s why we need that criminal record to really know. And that saves us in you a lot of time. The worst thing you want to do is go to a lawyer and say, Hey, I need this assault and battery, or this felony that I was charged with expunged, and we get through the, we start doing the research, we get in you paid your money and find out it’s either not on your record, or you were actually found guilty, and there’s no nothing we can do for you. And then you’re gonna look at me and say, hey, I want my money back, you weren’t able to do anything like, Well, you told me this, and I was working from that. So it’s kind of a tricky wicket, I always like to have the criminal record up front.

Jackie Critzer 10:32
And also, if your charge was even reduced, that’s still not expungeable. If you if you accepted a deal on a reduced charge, you the original charge may or may not show up, the charge that you accepted, the deal for is going to show up, neither one are expungeable, that’s going to stick so lots of nuances in expungement, but worth a phone call and worth doing some research ahead of the time that you make the phone call so that you can figure out if it’s something that is even expungeable.

Scott Cardani 10:59
And let me say this last thing, I think this is really important for young people who may have gotten trouble, like they’re 18 or 19. And they didn’t get charged, didn’t go through, but that’s sitting on their criminal record. A lot of times they don’t realize that and a lot of times they’re getting flagged out for a job because let’s face it, when somebody pulls that criminal record an employee looks through it starts looking through that criminal record and he sees he may not be sophisticated enough to know whether you were actually found guilty or not guilty. He sees the charge. So for me, as a parent, I think it’s so important to try to keep that help your child keep that clean. Maybe they made a couple of mistakes, and maybe it turned out to be nothing, you know, but if you can keep that record clean, it keeps them in the race in the hunt for a good job and keeps them on the right track.

Jackie Critzer 11:43
Well, thanks for listening to our podcast today here at Critzer Cardani. Stay tuned for additional podcasts we look forward to hearing from you be sure and like and subscribe.

What To Do When… Outro 11:51

We hope you’ve enjoyed this episode of What To Do When… For more episodes, be sure to subscribe to our podcast and we encourage you to check archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani.

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