13102839D
HOUSE BILL NO. 1925
Offered January 9, 2013
Prefiled January 9, 2013
A BILL to amend and reenact §19.2-392.2 of the Code of
Virginia, relating to expungement of nonviolent misdemeanor offenses after
passage of five years.
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Patron-- Ware, O.
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:
1. That §19.2-392.2 of the Code of Virginia is 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 or a misdemeanor
offense in Title 46.2,
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, or
3. Was convicted of a
nonviolent crime more than five years prior to his petition as
described in subsection C, 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. 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. Any person who has
been convicted of only one nonviolent misdemeanor offense
that is not a violation of §18.2-266 or
an offense for which registration is required under §
9.1-902, when more
than five years have passed from the
date of conviction, all terms and conditions
of probation have been satisfied
and completed, and all fines, costs, and
restitution have been paid, may
file a petition with the proper district court
in the jurisdiction where the conviction was
obtained for relief pursuant to this section. Such
person shall not be eligible to file a petition
hereunder if he has criminal charges pending. For application of this
subsection to the provisions of this section relating to the
expungement of a charge by
a court, a charge
includes a conviction.
A petition filed under
this subsection shall include one complete set of the petitioner's fingerprints
obtained from a law-enforcement agency.
The Department of State
Police shall maintain a record of any expungement granted under this
subsection, which shall be considered a conviction for purposes of
prosecution of any subsequent offense when
conviction of a subsequent such offense would result in statutorily enhanced punishment.
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 or
by conviction in the
case of a nonviolent misdemeanor, 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 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.
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 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.
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 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 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.
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 hereof.
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 hereof.
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 hereof.
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.
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