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 and that the Code of Virginia is amended by adding in Article 1 of Chapter 2 of Title 17.1 a section numbered 17.1-205.1 as follows:
§17.1-205.1. Expungement Fee Fund.
There is hereby created in the state treasury a special nonreverting fund to be known as the Expungement Fee Fund, referred to in this section as "the Fund." The Fund shall be established on the books of the Comptroller. All funds accruing to the Fund pursuant to §19.2-392.2 and all funds appropriated for such purpose and any gifts, donations, grants, bequests, and other funds received on its behalf shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. The Fund shall be administered by the Executive Secretary of the Supreme Court, who shall use such funds solely to fund the costs for the compensation of court-appointed counsel under the provisions of subsection O of §19.2-392.2. Expenditures from the Fund shall be limited by an appropriation in the general appropriations act. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon request of the Executive Secretary of the Supreme Court.
§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 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, a civil offense, 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; (iv) (a) the person is convicted of a violation
of §4.1-305 or 18.2-250.1 or subsection B of §18.2-371.2, (b) the person was
under 21 years of age on the date of the incident leading to the conviction,
(c) all fines and all orders of restitution have been satisfied, and (d) five
years have passed since the date of conviction; (v) (a) the person was charged
with a violation of §4.1-305, 18.2-250, or 18.2-250.1 and such charge was
discharged and dismissed as provided in §4.1-305 or 18.2-251 and (b) all court
costs and fines and all orders of restitution have been satisfied; or (vi) the
person is convicted and has received a simple pardon for the commission of the
crime or offense for which he seeks expungement and (a) has been of good
behavior for the five years preceding the filing of his petition and (b) the
conviction is not for a violent felony as defined in subsection C of §17.1-805
or §19.2-297.1, or any crime ancillary to such conviction, or for a violation
of §18.2-248, 18.2-248.01, 18.2-248.1, 18.2-255, 18.2-255.2, 18.2-258.02, or 24.2-1016,
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
or conviction.
B. 1. 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 subdivision. A petition filed
under this subsection subdivision shall include one complete set
of the petitioner's fingerprints obtained from a law-enforcement agency.
2. A person shall not be required to pay any fees or costs for filing a petition pursuant to this section if such person files a petition requesting to proceed without the payment of fees and costs, and such petition:
a. States that (i) the final disposition of the criminal charge, civil offense, or conviction eligible for expungement occurred within the last 12 calendar months, as shown by an attached copy of the final case disposition; and (ii) petitioner was represented by court-appointed counsel or a public defender, as certified by such person or his attorney with documentation of such representation attached; or
b. Requests a determination of indigency, pursuant to § 19.2-159, by the court with which such person intends to files his expungement petition.
C. The petition with a copy of the warrant, summons, 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, civil offense, 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. 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. 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, if applicable, 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. 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 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. However, if the petitioner has no prior criminal record and the
arrest, charge, or conviction was for a misdemeanor violation or the
charge was for a civil offense, 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 that he
does not object to the petition and (ii) when the arrest, charge, or
conviction to be expunged is a felony, stipulates in such written notice
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, the court may enter an order of expungement without conducting
a hearing.
G. 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. 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 petitioner's
fingerprints filed with his petition. Upon the entry of such order, it shall be
treated as provided in subsection K.
I. 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.
J. 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.
K. 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. 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. Any costs and expungement fees collected
pursuant to this section shall be deposited in the Expungement Fee Fund created
pursuant to §17.1-205.1.
M. 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.
N. For purposes of this section, "simple pardon" means an act by the Governor on behalf of the Commonwealth representing official forgiveness of a crime for which a person has been convicted.
O. If a petitioner qualifies to file a petition for expungement without the payment of fees and costs pursuant to subdivision B 2 and has requested court-appointed counsel, the court shall then appoint counsel to file the petition for expungement and represent the petitioner in the expungement proceedings. Counsel appointed to represent such a petitioner shall be compensated for his services on an hourly basis at a rate set by the Supreme Court of Virginia, and subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, in a total amount not to exceed $300 and such compensation shall be paid from the Expungement Fee Fund.
§19.2-392.4. Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments; penalty.
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 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.
2. That the provisions of this act shall become effective on January 1, 2022.