Your right to an expungement of your criminal records is limited in Virginia. However, you may be entitled to expunge a criminal charge if you received a writ of actual innocence. The procedure for obtaining this relief is easier than in other types of expungements.
What Is an Expungement?
An expungement is the sealing of criminal charges from public view, but it does not result in the destruction of the records. An individual is only allowed to have criminal charges expunged in specific situations, such as they pled not guilty of a crime and were acquitted, were the victims of identity theft, or received a pardon. They can also get the criminal charges removed if they were found guilty of a crime but received a writ of actual innocence.
What Is a Writ of Actual Innocence?
After a person is convicted of a crime and sentenced, they can file an appeal or post-conviction petition to try to have their sentence overturned. One of these post-conviction remedies is to file a petition based on newly discovered evidence that proves their innocence. This petition is referred to as a writ of actual innocence. There are two types of writs:
- Writ based on biological evidence. One type of writ is a petition based on new biological evidence, such as DNA evidence, that shows the defendant was wrongly convicted. A writ of innocence based on biological evidence would be decided by the Virginia Supreme Court.
- Writ based on non-biological evidence. The other type of writ of innocence is one based on non-biological evidence, such as witness testimony, and it would be filed in and decided by the Virginia Court of Appeals.
A new law was enacted in 2020 that makes it easier for people to get wrongful convictions overturned through a writ of innocence. Here are key provisions of the new law:
- It removes the bar that prohibited defendants from filing more than one writ of actual innocence if their first one was denied and they discovered additional new evidence.
- It removes the restriction that prohibited individuals who pled guilty to a crime, which happens even when they know they are innocent, from filing a writ of innocence.
- The standard of proof in deciding whether to overturn a conviction is reduced to the “preponderance of evidence” that no juror would have found the person guilty beyond a reasonable doubt, which is easier to prove.
How Do You Get an Expungement If a Writ of Innocence Was Granted?
If your petition was granted and your conviction was overturned, you do not have to file a petition for an expungement, unlike other cases where an expungement is requested. The court granting the writ will forward it to the circuit court so that the charges are expunged. However, you may need to be proactive to ensure that the expungement of the criminal charges against you goes quickly and is successful.
Are you trying to obtain an expungement of your criminal charges? Our experienced expungement lawyers are here to answer your questions and take the necessary steps to get the charges removed from your criminal record. Call our Manassas office today to schedule a free consultation to get started.