16101747D
HOUSE BILL NO. 934
Offered January 13, 2016
Prefiled January 12, 2016
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; certain misdemeanors.
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Patron-- Carr
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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 19.2-392.4 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 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 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 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 10 years have passed since the
person was convicted of the offense that he seeks to have expunged. The
provisions of this subsection shall not apply to any person who has been
convicted of (i) any criminal offense other than the conviction he seeks to
have expunged; (ii) a violation of §18.2-266, 29.1-738, or 46.2-341.24; (iii)
any offense involving child abuse or neglect; (iv) any offense involving
domestic violence for which a person is denied any firearm rights under 18
U.S.C. §922(g); (v) any offense for which registration is required pursuant to
§9.1-902; or (vi) any offense in Chapter 4 (§18.2-30 et seq.) of Title 18.2.
In order to qualify under this subsection, the petitioner shall have no pending
charges; shall have no outstanding fines, costs, or restitution; and shall have
completed all terms of sentencing and probation, including successful
completion of any drug or alcohol treatment program, and be dependency free.
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.
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 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 petitioner's date of birth, and the full name used by the
petitioner at the time of arrest.
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, charge, or conviction 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 arrest, charge, or conviction. Otherwise, it
shall deny the petition. 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. 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.
§19.2-392.4. 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, or conviction 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, 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
conviction, 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
applicant's 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.
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