One of the most common questions we get is whether a person can get a charge expunged after a deferred dismissal.

Consider a person who gets their case taken under advisement, and it is dismissed after a period of time once they complete probation, community service, good behavior, etc. Once the charge is dismissed under “deferred dismissal” or “deferred judgment,” can they get it expunged from their criminal record? In other words, will the court permanently seal the police and court records so that it does not show up on a background check?

Under Virginia law, courts are generally divided over whether a charge can get expunged after it has been taken under advisement and dismissed. Most courts take the view that if the case was continued on the docket, and later dismissed, a person can get the charge expunged. However, it becomes more difficult to get an expungement if a person pled guilty to the charge, or the court made a finding of “facts sufficient for guilt” before later dismissing it. In those scenarios, courts might be reluctant to later grant an expungement.

In Newton v. Commonwealth, 71 Va. Cir. 160 (Fairfax County 2006), the petitioner had been charged with petit larceny, i.e. shoplifting. She did not plead guilty, but the court made a finding of evidence sufficient to find her guilty. She was allowed to complete certain conditions imposed by the court – good behavior, etc. – after which time the charge was dismissed. Unfortunately, the Court denied her petition for expungement because the lower court had made a determination on the record of facts sufficient for guilty – even though the charge had been dismissed.

In Allman v. Commonwealth, 74 Va. Cir. 170 (Roanoke County 2007), the petitioner was arrested for petit larceny, i.e. shoplifting. She was allowed to complete certain terms of probation and the charge was later dismissed. However, since the lower court had made a finding of facts sufficient for guilt, her petitioner for expungement was denied.

There’s good news – a recent shift in the law by the Supreme Court of Virginia seems to allow getting a charge expunged if it was taken under advisement and dismissed.

In Brown v. Commonwealth, 278 Va. 92 (2009), the Supreme Court of Virginia held that charges that were taken under advisement and dismissed can be successfully expunged and removed from a person’s criminal record. The petitioner had never entered a plea. The court never made a finding of facts sufficient for guilt. Rather, the case was taken under advisement while the petitioner completed certain conditions, e.g. good behavior, etc., and then dismissed. The Court held that the charge was “otherwise dismissed” for the purposes of expungement.

The bottom line is that each case is different, and it depends on what transpired in the lower court. An experienced Virginia expungement lawyer can help evaluate the record and provide you with guidance.

Do You Qualify for Expungement?

If you need help getting a criminal charge removed from your record for work or school, or perhaps you need to apply for a security clearance, contact a Virginia expungement lawyer to review your case.