Bill Text: VA HB1065 | 2018 | Regular Session | Prefiled
Bill Title: Marijuana; convicted of possession, expungement of police and court records.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-02-15 - Left in Courts of Justice [HB1065 Detail]
Download: Virginia-2018-HB1065-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§19.2-392.2 and 19.2-392.4 of the Code of Virginia are amended and reenacted as follows:
§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 possession of marijuana under § 18.2-250.1 or charged under that 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 five years have passed from the date of conviction. 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 program, and shall 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 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, 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, charge, or conviction 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 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 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. 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
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.
