Are juvenile records in Virginia automatically expunged when the case was dismissed or nolle prossed?

Plain-English summary

State Senator Scott Surovell asked whether a circuit court clerk has the same automatic expungement duty for juvenile records that a juvenile and domestic relations (JDR) district court clerk has. Specifically, does § 16.1-307 require the circuit court to destroy a juvenile's files once a case is dismissed or nolle prossed and the statutory waiting period has expired?

The AG's answer: yes. Section 16.1-307 expressly says circuit court records of juvenile cases "shall be subject to expungement provisions of § 16.1-306." Section 16.1-306 then sets out the timing rules: the clerk destroys the files on January 2 each year (or another court-designated date) once the juvenile has reached age 19 and at least five years have passed since the last hearing. There are important exceptions: records of offenses that produce a DMV abstract under § 46.2-383 are kept until the juvenile is 29, and records of acts that would be felonies if committed by an adult are not destroyed at all.

This is automatic. It is not the same as a petition for early expungement under § 16.1-306(C), which still requires a court order.

What this means for you

Former juveniles whose case was dismissed

The opinion holds that for a case dismissed or nolle prossed, expungement is automatic once the juvenile has turned 19 and five years have passed since the last hearing; no petition is required. It identifies two exceptions: records of acts that would be felonies if committed by an adult are retained, and DMV-reportable offenses under § 46.2-383 are kept until age 29. The opinion notes the default destruction date is January 2 each year, so a case reaching its five-year mark may not be destroyed until the following January, and § 16.1-305 keeps the record confidential in the meantime.

Juvenile defense attorneys

The opinion treats the destruction duty as mandatory, reading "shall" in § 16.1-306(A) as non-discretionary, and applies it to circuit court clerks as well as JDR district court clerks. It distinguishes this automatic expungement from early expungement under § 16.1-306(C), which still requires a petition and a court order.

Circuit court clerks

The opinion holds that § 16.1-307 directs circuit clerks to follow the same § 16.1-306 expungement procedures as JDR district court clerks for juvenile cases the circuit court handled in juvenile fashion, subject to the felony-equivalent carveout (records retained) and the DMV-reportable carveout (records retained until age 29).

Parents of a juvenile whose case was dismissed

The opinion holds that automatic expungement requires no action once the time conditions are met. For clearance before age 19 or before five years have passed, the opinion points to the separate § 16.1-306(C) petition, which requires a court order.

Common questions

Q: My juvenile case was dismissed years ago. Do I need to do anything to clear it?
A: Under this 2021 opinion, no, for adjudications dismissed or nolle prossed, expungement is automatic once you turn 19 and five years have passed since your last hearing. There are exceptions (felony-equivalent acts and DMV-reportable offenses), but for most dismissed cases the clerk should destroy the file without a petition.

Q: What's a "felony if committed by an adult" exception?
A: If the juvenile was adjudicated guilty of conduct that would be a felony if an adult had done it, those records are kept by the clerk and are not destroyed. The exception applies to findings of guilt, not to dismissed or nolle prossed charges.

Q: My case is "ancillary" to a felony-equivalent act. What happens to that record?
A: Per § 16.1-306, in a file that contains a finding of guilt for a felony-equivalent act or a DMV-reportable offense, the ancillary records in that same file are retained for the same period as the main offense.

Q: Can I get my juvenile record expunged before I turn 19?
A: Yes, but not automatically. Section 16.1-306(C) allows a juvenile or their attorney to petition the court for early expungement of a dismissed case. A judge will decide.

Q: I am 22 and was charged with something at 14 that was dismissed. The case still shows up on a court records search. What now?
A: Under the opinion it should not. The opinion calls the destruction mandatory and notes the annual January 2 default destruction date, subject to the felony-equivalent and DMV-reportable exceptions. The clerk of the court where the matter was heard is the office responsible for the file under §§ 16.1-306 and 16.1-307.

Q: Are juvenile records confidential even before destruction?
A: Yes. Section 16.1-305 makes juvenile court records confidential and limits who may inspect them, subject to specific exceptions in §§ 19.2-389.1 and 19.2-390.

Background and statutory framework

Virginia handles juvenile justice records under a destruction-and-confidentiality framework that is more protective than the adult system. The default rule under § 16.1-306(A) is that the JDR district court clerk destroys juvenile case files on January 2 each year (or another date designated by the court) once the juvenile has turned 19 and five years have passed since the last hearing.

Two exceptions extend retention:

• DMV-reportable offenses under § 46.2-383, like certain traffic offenses, must be retained until the juvenile turns 29.
• Findings of guilt for delinquent acts that would be felonies if committed by an adult are retained indefinitely.

Where a finding of guilt for a felony-equivalent or DMV-reportable offense appears in the same file as an "ancillary" matter, the ancillary record is held for the same period.

Section 16.1-307 originally addressed only JDR district court records. In 1990, the General Assembly added language extending the same expungement procedures to circuit courts: "[s]uch [circuit court] records ... shall be subject to the expungement provisions of § 16.1-306." That 1990 change is what makes this opinion's conclusion possible. The AG also notes a 1993 AG opinion that previously interpreted the 1990 amendment the same way.

The opinion distinguishes automatic expungement from early expungement under § 16.1-306(C), which requires a petition and court order.

Citations and references

Statutes:

• Va. Code § 16.1-69.55 (Records destruction generally)
• Va. Code § 16.1-305 (Confidentiality)
• Va. Code § 16.1-306 (Expungement of juvenile court records)
• Va. Code § 16.1-307 (Disposition of records in circuit courts)
• Va. Code § 19.2-389.1 (Dissemination of juvenile records)
• Va. Code § 19.2-390 (Reports to State Police)
• Va. Code § 46.2-383 (DMV abstract for certain offenses)

Prior AG opinions:

• 1993 Op. Va. Att'y Gen. 101 (cited for legislative history of the 1990 amendment to § 16.1-307)

Session law:

• 1990 Va. Acts ch. 258 (amendment adding circuit-court expungement language)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-010-Surovell-juvenile-expungements-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

May 21, 2021

The Honorable Scott A. Surovell
Member, Senate of Virginia
Post Office Box 289
Mount Vernon, Virginia 22121

Dear Senator Surovell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether a circuit court clerk has a duty under § 16.1-307 to automatically expunge juvenile charges that have been dismissed or nolle prosequi, upon the passage of the time periods specified in § 16.1-306.

Applicable Law and Discussion

Section 16.1-306 provides, in pertinent part:

A. Notwithstanding the provisions of § 16.1-69.55, the clerk of the juvenile and domestic relations district court shall, on January 2 of each year or on a date designated by the court, destroy its files, papers and records, including electronic records, connected with any proceeding concerning a juvenile in such court, if such juvenile has attained the age of 19 years and five years have elapsed since the date of the last hearing in any case of the juvenile which is subject to this section. However, if the juvenile was found guilty of an offense for which the clerk is required by § 46.2-383 to furnish an abstract to the Department of Motor Vehicles, the records shall be destroyed when the juvenile has attained the age of 29. If the juvenile was found guilty of a delinquent act which would be a felony if committed by an adult, the records shall be retained.

However, in all files in which the court records concerning a juvenile contain a finding of guilty of any offense ancillary to (i) a delinquent act that would be a felony if committed by an adult or (ii) any offense for which the clerk is required by § 46.2-383 to furnish an abstract to the Department of Motor Vehicles, the records of any such ancillary offense shall also be retained for the time specified for the felony or the offense reported to the Department of Motor Vehicles as specified in subsection A, and all such records shall be available for inspection as provided in § 16.1-305.

Section 16.1-307 pertains to the disposition of records in proceedings against a juvenile in which a circuit court "deals with the child in the same manner as a case in the juvenile court." That statute provides, in part, that "[e]xcept as provided in §§ 19.2-389.1 and 19.2-390, such records shall be open for inspection only in accordance with the provisions of § 16.1-305 and shall be subject to expungement provisions of § 16.1-306."

Section 16.1-307 clearly directs circuit court clerks to follow the same procedures as clerks of juvenile and domestic relations district courts for the expungement of such juvenile records, as set forth in § 16.1-306.

A review of the legislative history of § 16.1-307, as well as prior opinions of the Virginia Attorney General, demonstrates that the General Assembly added language to the statute to clarify its intent for circuit court clerks to follow the same procedures for expungements as juvenile and domestic relations district court clerks. A prior opinion of this Office noted:

In 1990, the General Assembly added an expungement provision to the last sentence of § 16.1-307, stating: "Such [circuit court] records shall be open for inspection only in accordance with the provisions of § 16.1-305 and shall be subject to the expungement provisions of § 16.1-306." 1990 Va. Acts, supra, at 353.

The addition of this language in 1990 makes clear that the General Assembly specifically intended the expungement provisions of § 16.1-306 to apply to both clerks of juvenile and domestic relations district courts and circuit courts.

It is important to note, however, that these statutes set out certain exceptions from automatic expungement, most notably an exception for proceedings in which a juvenile was found guilty of a delinquent act that would be a felony "if committed by an adult."

In addition, the discussion in this opinion should be distinguished from situations in which an individual petitions a court under § 16.1-306(C) for early expungement of a dismissed juvenile case. In those instances, a court order is required for the clerk to effectuate expungement.

Conclusion

Accordingly, for the reasons stated, it is my opinion that §§ 16.1-306 and -307 of the Code of Virginia require automatic expungement of juvenile proceedings that have been dismissed or nolle prosequi, upon the passage of the time periods specified in § 16.1-306, subject to the exceptions and specific procedures set forth in §§ 16.1-306 and -307.

With kindest regards I am,
Very truly yours,

Mark R. Herring
Attorney General