Introduced in House Passed House Introduced in Senate Passed Senate Became Law
01/07/2020        

Misdemeanor drug offenses, certain; expungement.

Allows a person convicted of a misdemeanor offense of possession of a controlled substance or marijuana, or charged with such an offense which charge was deferred and dismissed, who has successfully completed all terms of probation to file a petition for expungement one year after the completion of such terms if he has not been convicted of any offense involving violence. Any conviction that is expunged will be considered a prior conviction for purposes of prosecution of any subsequent offense for which the prior conviction statutorily enhances punishment. The bill also provides that any outstanding fines or costs from the misdemeanor conviction may be waived or reduced for an indigent petitioner or for good cause shown.

Date Version PDF TXT
01/07/2020 House: Prefiled and ordered printed; offered 01/08/20 20104880D Open

            

2020 SESSION

    20104880D
    HOUSE BILL NO. 865
    Offered January 8, 2020
    Prefiled January 7, 2020
    A BILL to amend and reenact �� 19.2-392.1, 19.2-392.2, and 19.2-392.4 of the Code of Virginia, relating to expungement of police and court records.
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    Patron-- Levine
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    Referred to Committee for Courts of Justice
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    Be it enacted by the General Assembly of Virginia:

    1. That �� 19.2-392.1, 19.2-392.2, and 19.2-392.4 of the Code of Virginia are amended and reenacted as follows:

    19.2-392.1. Statement of policy.

    The General Assembly finds that arrest records can be a hindrance to an innocent citizens ability to obtain employment, an education, and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted, or who have demonstrated their rehabilitation, can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which that may occur as a result of being arrested and convicted.

    19.2-392.2. Expungement of police and court records.

    A. If a person is charged with the commission of a crime or any offense defined in Title 18.2, and

    1. Is (i) the person is acquitted, or

    2. A; (ii) a nolle prosequi is taken; or (iii) the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to � 19.2-151, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.

    B. Any person who has been convicted of a misdemeanor offense of possession of a controlled substance under � 18.2-250 or possession of marijuana under � 18.2-250.1 or charged under either section which charge has been deferred and dismissed pursuant to � 18.2-251 may file a petition setting forth the relevant facts and requesting expungement of police records and court records relating to the charge and conviction after at least one year has passed since the date of completion of all terms of sentencing and probation. The provisions of this subsection shall not apply to any person who has been convicted of any criminal offense involving violence. In order to qualify under this subsection, the petitioner shall have no pending charges and shall have completed all terms of sentencing and probation, including successful completion of any drug or alcohol treatment program. The Department of State Police shall maintain a record of any expungement granted pursuant to this subsection. Any conviction that is expunged under this subsection shall be considered a prior conviction for purposes of prosecution of any subsequent offense for which such prior conviction statutorily enhances punishment and considered a prior criminal record with respect to subdivision G 2.

    C. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section. Such person shall not be required to pay any fees for the filing of a petition under this subsection. A petition filed under this subsection shall include one complete set of the petitioners fingerprints obtained from a law-enforcement agency.

    C. D. The petition with a copy of the warrant or indictment if reasonably available shall be filed in the circuit court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed and shall contain, except where not reasonably available, the date of arrest and the name of the arresting agency. Where this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the specific criminal charge or conviction to be expunged, the date of final disposition of the charge or conviction as set forth in the petition, the petitioners date of birth, and the full name used by the petitioner at the time of arrest. If a petitioner has any outstanding fines or costs, such fines or costs shall be listed in the petition. Any petitioner seeking to have such fines and costs waived or reduced shall also file a written financial statement with the petition to support a claim of indigency.

    D. E. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is served on him.

    E. F. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioners fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioners 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. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner. If no hearing was conducted, upon the entry of an order of expungement or an order denying the petition for expungement, the court shall cause the fingerprint card to be destroyed unless, within 30 days of the date of the entry of the order, the petitioner requests the return of the fingerprint card in person from the clerk of the court or provides the clerk of the court a self-addressed, stamped envelope for the return of the fingerprint card.

    F. G. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition.

    1. If the court finds that the continued existence and possible dissemination of information relating to the arrest, charge, or conviction of the petitioner causes or may cause circumstances which that constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the arrest, charge, or conviction. Otherwise, it shall deny the petition.

    2. However, if the petitioner has no prior criminal record and the arrest, charge, or conviction was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the arrest, charge, or conviction, and the court shall enter an order of expungement.

    3. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court pursuant to subsection D E that he does not object to the petition and (ii) when the arrest or charge to be expunged is a felony, stipulates in such written notice that the continued existence and possible dissemination of information relating to the arrest or charge of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, the court may enter an order of expungement without conducting a hearing.

    The court may also reduce or discharge any fines or costs based on the petitioners financial condition or for other good cause shown when entering an order of expungement, or require the petitioner to pay any outstanding fines or costs prior to entering an order of expungement.

    G. H. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.

    H. I. Notwithstanding any other provision of this section, when the a charge is dismissed because the court finds that the person arrested or charged is not the person named in the summons, warrant, indictment, or presentment, the court dismissing the charge shall, upon motion of the person improperly arrested or charged, enter an order requiring expungement of the police and court records relating to the charge. Such order shall contain a statement that the dismissal and expungement are ordered pursuant to this subsection and shall be accompanied by the complete set of the petitioners fingerprints filed with his petition. Upon the entry of such order, it shall be treated as provided in subsection K L.

    I. J. Notwithstanding any other provision of this section, upon receiving a copy pursuant to � 2.2-402 of an absolute pardon for the commission of a crime that a person did not commit, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of such order, it shall be treated as provided in subsection K L.

    J. K. Upon receiving a copy of a writ vacating a conviction pursuant to � 19.2-327.5 or 19.2-327.13, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of the order, it shall be treated as provided in subsection K L.

    K. L. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to � 9.1-134, direct the manner by which the appropriate expungement or removal of such records shall be effected.

    L. M. Costs shall be as provided by � 17.1-275, but shall not be recoverable against the Commonwealth. If the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.

    M. N. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order.

    19.2-392.4. Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments.

    A. 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, or conviction 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, or conviction, include a reference to or information concerning arrests or, charges, or convictions that have been expunged.

    B. 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, or conviction 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, or convictions, include a reference to or information concerning arrests, charges, or convictions that have been expunged. Such an application may not be denied solely because of the applicants refusal to disclose information concerning any arrest or, criminal charge against him, or conviction that has been expunged.

    C. A person who willfully violates this section is guilty of a Class 1 misdemeanor for each violation.

    Picture Name From Date Type
    Mark H. Levine D-Richmond Sponsor
    Date Branch Action
    01/07/2020 House House: Prefiled and ordered printed; offered 01/08/20 20104880D
    01/07/2020 House House: Referred to Committee for Courts of Justice
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