16100506D
HOUSE BILL NO. 74
Offered January 13, 2016
Prefiled December 7, 2015
A BILL to amend and reenact §§19.2-392.1, 19.2-392.2, and
19.2-392.3 of the Code of Virginia, relating to expungement of misdemeanor drug
offenses.
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Patron-- Campbell
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Committee Referral Pending
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Be it enacted by the General Assembly of Virginia:
1. That §§19.2-392.1, 19.2-392.2, and 19.2-392.3 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 citizen's 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 acquitted, or
2. A nolle prosequi is taken or 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 may
file a petition setting forth the relevant facts and requesting expungement of
the police records and the court records relating to the charge and conviction
after at least 10 years have passed since the person was convicted of the
offense he seeks to have expunged, provided that the
person would have been eligible to have been placed on probation under §
18.2-251 for the offense he seeks to have expunged but was not offered the
opportunity to proceed under §18.2-251 for such offense. In
order to qualify under this subsection, the petitioner
shall have (i) no subsequent convictions under Article 1 (§
18.2-247 et seq.) of Chapter 7 of Title 18.2;
(ii) no pending charges; (iii)
no outstanding fines, costs, or restitution; and
(iv) completed all terms of
sentencing and probation, including successful completion of any drug treatment
program and be dependency free. The Department of
State Police shall maintain a record of any expungement granted pursuant to
this subsection, and any conviction that is expunged under this
subsection shall be considered a prior conviction for purposes
of applying §18.2-251 in subsequent proceedings.
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
petitioner's 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 petitioner was convicted or 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, and the date of
conviction, if applicable. 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 as set forth in the petition, the
petitioner's date of birth, and the full name used by the petitioner at the
time of arrest and conviction, if
applicable.
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
petitioner's 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 petitioner's 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. If the court finds that the continued
existence and possible dissemination of information relating to the arrest and conviction, if applicable,
of the petitioner causes or may cause circumstances which 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
charge. Otherwise, it shall deny the petition. However, if the petitioner requests expungement pursuant to subsection A and
has no prior criminal record and the arrest 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 charge, and the court shall enter an order of expungement. 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 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 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.
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 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 petitioner's 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, when a person has been granted an absolute
pardon for the commission of a crime that he did not commit, he may file in the
circuit court of the county or city in which the conviction occurred a petition
setting forth the relevant facts and requesting expungement of the police
records and the court records relating to the charge and conviction, and 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.
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.
§19.2-392.3. Disclosure of expunged records.
A. It shall be is 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 that
ordered the record expunged. Expunged court
records maintained pursuant to subsection B of §19.2-392.2 may be disclosed to
an attorney for the Commonwealth for purposes of determining whether a
defendant has ever received an expungement for a prior conviction of
a misdemeanor offense of possession of a controlled substance under §18.2-250
or possession of marijuana under §18.2-250.1 that would be
considered a prior conviction for purposes of applying §18.2-251 in subsequent
proceedings. All requests and disclosures for expunged court
records maintained pursuant to subsection B of §19.2-392.2 shall be made in
accordance with the procedures established by the Department
of State Police.
B. 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.
C. Any person who willfully violates this section is guilty of
a Class 1 misdemeanor.
2. That the Department of State Police shall develop procedures
to allow for the secure dissemination of expunged criminal conviction records
to attorneys for the Commonwealth in accordance with the requirements of
subsection A of §19.2-392.3 of the Code of Virginia and any rules or
regulations adopted pursuant to §9.1-134 of the Code of Virginia.
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