Expungement / Record Sealing Petition and Eligibility Memo — Virginia

Expungement / Record Sealing Petition and Eligibility Memo (VIRGINIA)

Quick-Reference Summary

Part A — Eligibility Memo

MEMORANDUM

TO: [CLIENT NAME]
FROM: [ATTORNEY NAME], [FIRM]
DATE: [__/__/____]
RE: Eligibility for Expungement / Sealing of Virginia Criminal Records — [CLIENT NAME]

I. Question Presented

Whether [CLIENT]'s Virginia criminal record — [SUMMARIZE: e.g., one Class 1 misdemeanor petit larceny conviction (2014) and one nolle-prossed Class 5 felony (2017)] — is eligible for relief under (a) Va. Code § 19.2-392.2 expungement (non-convictions), (b) automatic sealing under §§ 19.2-392.6 – 19.2-392.7, or (c) petition-based sealing under §§ 19.2-392.12 or 19.2-392.12:1 (eff. July 1, 2026).

II. Short Answer

[☐ Eligible for § 19.2-392.2 expungement of non-conviction matter(s)]
[☐ Automatic sealing should occur on or about [date] under § 19.2-392.6 / § 19.2-392.7 — no petition required]
[☐ Eligible for petition-based sealing under § 19.2-392.12 (conviction)]
[☐ Eligible for petition-based sealing under § 19.2-392.12:1 (deferred-and-dismissed)]
[☐ INELIGIBLE — [reason: excluded offense / pre-1986 / waiting period / disqualifying record]]

III. Statutory Framework

A. § 19.2-392.2 — Expungement of Police and Court Records (non-convictions).
Available when a person was charged and (i) acquitted, (ii) had the charge taken under nolle prosequi, (iii) had the charge otherwise dismissed (including accord and satisfaction under § 19.2-151), or (iv) was charged through identity misuse. Petition filed in circuit court of disposition. Commonwealth's attorney has 21 days to file an objection or answer. Commonwealth v. Jackson, 255 Va. 552 (1998), recognizes a presumption of entitlement to expungement; the Commonwealth bears the burden of showing the records may be "necessary," and a denial requires demonstrated harm. See Necaise v. Commonwealth, 281 Va. 666 (2011).

B. Chapter 23.2 Sealing — effective July 1, 2026.

1. Automatic sealing — § 19.2-392.6 (convictions). Nine categories: petit larceny (§ 18.2-96), concealment (§ 18.2-103), three trespass variants (§§ 18.2-119, 18.2-119.1), misdemeanor marijuana distribution (former § 18.2-248.1(a)(1) and current analog), and disorderly conduct (§ 18.2-415), among others. Sealed automatically after 7 years from the date of conviction provided the person has not been convicted of any other Commonwealth offense during that period and no other ineligible conviction.
2. Automatic sealing — § 19.2-392.7 (non-convictions). Misdemeanor non-convictions for individuals with no convictions on their record.
3. Petition-based sealing — § 19.2-392.12 (convictions). Available for eligible misdemeanors and a defined list of felonies, excluding Class 1 and 2 felonies, violent offenses, certain DUI repeat offenses, sex offenses, and other listed crimes. Waiting periods are statutorily prescribed and tied to offense class.
4. Petition-based sealing — § 19.2-392.12:1 (deferred-and-dismissed). Required where the underlying charge would otherwise have automatically sealed but was resolved by a deferred disposition — no longer auto-sealed under the 2025 amendments.

C. Date Floor (2025). Only convictions or deferred-and-dismissed charges with an offense date on or after January 1, 1986 are eligible for conviction sealing.

D. Ancillary Matters (2025). "Ancillary matter" — probation violation, contempt, failure-to-appear, bail/bond appeal — may now be sealed alongside the underlying offense. Waiting period runs from the latest ancillary-matter conviction.

IV. Application

A. Inventory.
| # | Court | Charge | Statute | Offense Date | Disposition | Disposition Date | Sentence Completion |
|---|---|---|---|---|---|---|---|
| 1 | [Circuit Ct., [City/County]] | [____] | [§ __.__-___] | [__/__/____] | [Acquittal / Nolle / Dismissal / Conviction / Deferred-dismissed] | [__/__/____] | [__/__/____] |
| 2 | [____] | [____] | [____] | [__/__/____] | [____] | [__/__/____] | [__/__/____] |

B. Pathway Analysis.

For each matter, identify the applicable statute:

Non-conviction matters → § 19.2-392.2 (file now; do not wait for July 1, 2026).
Automatic-eligible conviction → § 19.2-392.6; verify offense and 7-year clean record; no petition required.
Other conviction (eligible) → § 19.2-392.12 petition (file on or after July 1, 2026).
Deferred and dismissed → § 19.2-392.12:1 (file on or after July 1, 2026).

C. Disqualifier Screen.
☐ Class 1 or 2 felony — INELIGIBLE for sealing
☐ Violent offense (per § 19.2-297.1 / Chapter 23.2 exclusion list) — INELIGIBLE
☐ Certain DUI/DWI — INELIGIBLE per statute
☐ Sex offense / requires registration — INELIGIBLE
☐ Offense date before January 1, 1986 — INELIGIBLE for sealing (non-conviction expungement under § 19.2-392.2 still available)
☐ Other excluded offense per § 19.2-392.12(A) — verify

D. Waiting Period.
Latest conviction or ancillary-matter conviction: [__/__/____].
Statutory waiting period (per offense class): [___] years.
Earliest filing date: [__/__/____].

E. Standard of Proof (non-conviction matters).
The Commonwealth bears the burden to show that retention of the record is "necessary"; a mere assertion is insufficient. Jackson, 255 Va. at 555.

V. Recommendation

[☐ File § 19.2-392.2 expungement petition immediately for the non-conviction matter(s)]
[☐ Wait until automatic sealing date under § 19.2-392.6 / § 19.2-392.7 — no action required, but monitor CCRE]
[☐ Prepare § 19.2-392.12 conviction sealing petition for filing on/after July 1, 2026]
[☐ Prepare § 19.2-392.12:1 deferred-and-dismissed petition]
[☐ Pursue gubernatorial restoration of rights in parallel (separate process)]

Part B — Petition Template

PETITION FOR [☐ EXPUNGEMENT UNDER VA. CODE § 19.2-392.2] [☐ SEALING UNDER VA. CODE § 19.2-392.12] [☐ SEALING UNDER VA. CODE § 19.2-392.12:1]

Petitioner [PETITIONER FULL LEGAL NAME], by counsel, respectfully petitions this Court pursuant to [Va. Code § 19.2-392.2 / § 19.2-392.12 / § 19.2-392.12:1], and states as follows:

1. Petitioner

1.1 Full legal name: [PETITIONER FULL LEGAL NAME].
1.2 Other names used (aliases): [_______________________].
1.3 Date of birth: [__/__/____].
1.4 Current residence: [ADDRESS, CITY, STATE, ZIP].
1.5 Social Security Number (last four): xxx-xx-[____].
1.6 Sex / Race (as recorded on warrant/indictment): [____ / ____].

2. Charge / Conviction Sought to Be [Expunged / Sealed]

2.1 Charge: [SPECIFIC CRIMINAL OR CIVIL CHARGE].
2.2 Statute / Ordinance: [Va. Code § __.__-___].
2.3 Date of arrest: [__/__/____].
2.4 Arresting agency: [POLICE/SHERIFF DEPARTMENT].
2.5 Court of disposition: [____].
2.6 Case number: [____].
2.7 Date of final disposition: [__/__/____].
2.8 Final disposition: [☐ Acquittal] [☐ Nolle prosequi] [☐ Dismissal] [☐ Dismissal by accord and satisfaction (§ 19.2-151)] [☐ Identity-theft (§ 19.2-392.2(B))] [☐ Conviction — sealing path] [☐ Deferred and dismissed — sealing path].

3. Statutory Basis

3.1 [For § 19.2-392.2:] Petitioner was charged with the foregoing offense and the charge was [acquitted / nolle prossed / dismissed]. The continued existence and possible dissemination of police and court records relating to the charge may cause a manifest injustice to Petitioner. Va. Code § 19.2-392.2(F).

3.2 [For § 19.2-392.12 conviction sealing:] The conviction identified above is eligible for sealing under § 19.2-392.12; the offense occurred on or after January 1, 1986; the statutory waiting period of [___] years has elapsed since the latest qualifying event; Petitioner has no intervening disqualifying convictions; and the offense is not categorically excluded under § 19.2-392.12(A).

3.3 [For § 19.2-392.12:1 deferred-dismissed sealing:] The matter identified above was deferred and dismissed, is not categorically excluded, and meets the applicable waiting period and clean-record requirements.

4. Identifying Materials

4.1 Petitioner requests that the Central Criminal Records Exchange (CCRE) electronically forward a copy of Petitioner's Virginia criminal history record to this Court for review under seal. Va. Code § 19.2-392.2(C).
4.2 [If identity-theft petition under § 19.2-392.2(B):] One complete set of Petitioner's fingerprints, obtained from [LAW ENFORCEMENT AGENCY], is attached.

5. Service

A copy of this Petition will be served upon the Attorney for the Commonwealth for [CITY / COUNTY] of [____], who has [21 days under § 19.2-392.2(D)] [or applicable period under Chapter 23.2] to file an objection or answer, or to file written notice of no objection.

6. Prayer for Relief

WHEREFORE, Petitioner respectfully requests:

(a) That this Court enter an Order [expunging / sealing] all police and court records relating to the charge identified in Paragraph 2;

(b) That the Order direct the Department of State Police, the [arresting agency], and the Clerk of this Court to take all actions required by [§ 19.2-392.2(H) / § 19.2-392.14 / § 19.2-392.15] to remove from public access the records relating to the charge;

(c) That the Order recognize Petitioner's rights under [§ 19.2-392.4 / § 19.2-392.5(D)] to deny the existence of the arrest, charge, [or conviction] in response to inquiries by state and local government agencies and private employers, subject to the dissemination exceptions in [§ 19.2-392.13];

(d) That the Order direct the dissemination of a copy to the petitioner upon entry; and

(e) Such other relief as this Court deems just and proper.

7. Verification

I, [PETITIONER FULL LEGAL NAME], swear under penalty of perjury that the statements made in this Petition are true and correct to the best of my knowledge.

Dated: [__/__/____]
______________________________
[PETITIONER SIGNATURE]

Subscribed and sworn to before me this [____] day of [_______], 20[___].
______________________________
Notary Public — My commission expires [__/__/____]

Submitted by:

______________________________
[ATTORNEY NAME], Esq. (VSB No. [_______])
[FIRM]
[ADDRESS]
[PHONE] | [EMAIL]
Counsel for Petitioner

Part C — Filing Checklist

Pre-Filing

☐ Pull CCRE / Virginia State Police criminal history (request via § 19.2-389)
☐ Pull FBI Identity History Summary if any out-of-state or federal activity
☐ Obtain certified disposition order(s) from the clerk of each circuit / district court
☐ Confirm offense date is on or after January 1, 1986 (for conviction sealing)
☐ Confirm offense is not categorically excluded under § 19.2-392.12(A) (sealing) or otherwise barred
☐ Calculate statutory waiting period (latest conviction including ancillary matters)
☐ Verify no intervening convictions during waiting period
☐ Determine the proper pathway: § 19.2-392.2 (non-conviction) vs. § 19.2-392.6 automatic vs. § 19.2-392.12 / § 19.2-392.12:1 petition
☐ Obtain fingerprints if filing under § 19.2-392.2(B) identity-theft pathway

Filing

☐ Draft Verified Petition (Part B) with completed caption, statutory basis, and prayer
☐ Prepare proposed Order tracking statutory language and directing CCRE / arresting agency / clerk action
☐ Confirm filing fee: NONE for § 19.2-392.12 conviction sealing (2025 reform); standard circuit-court fee may apply to § 19.2-392.2 (verify with clerk)
☐ File in the circuit court of the city/county where the case was disposed
☐ Serve the Attorney for the Commonwealth (and any other required party under § 19.2-392.14)
☐ Request CCRE electronic transmission of criminal history under § 19.2-392.2(C)
☐ Calendar the 21-day Commonwealth's-attorney objection window (§ 19.2-392.2(D)) or applicable Chapter 23.2 deadline

Post-Filing

☐ Monitor docket for objection or "no objection" notice from Commonwealth
☐ If unopposed: submit proposed Order for entry (some courts will rule without hearing on non-conviction matters)
☐ If opposed: prepare hearing brief addressing Jackson / Necaise "manifest injustice" / harm standard, or Chapter 23.2 statutory factors
☐ Upon entry, deliver certified copies of the Order to:
• Virginia State Police (CCRE)
• Arresting law-enforcement agency
• Department of Motor Vehicles (if record reflected there)
• Clerk of any court holding records of the matter
☐ Confirm CCRE has updated record (request follow-up Virginia State Police history)
☐ Send certified copies to private background-check vendors with notice of sealing/expungement
☐ Counsel client on § 19.2-392.4 / § 19.2-392.5(D) right to deny arrest/charge/conviction, with statutory exceptions (§ 19.2-392.13)
☐ Provide client with sealed-order memorandum and instruct retention in a secure location

Sources and References

• Va. Code § 19.2-392.2 (current and July 1, 2026 versions): https://law.lis.virginia.gov/vacode/title19.2/chapter23.1/section19.2-392.2/
• Va. Code Chapter 23.2 — Sealing of Criminal History Record Information and Court Records (eff. July 1, 2026): https://law.lis.virginia.gov/vacodefull/title19.2/chapter23.2/
• Va. Code § 19.2-392.5 — Sealing defined; effect of sealing: https://law.lis.virginia.gov/vacode/title19.2/chapter23.2/section19.2-392.5/
• Va. Code § 19.2-392.6 — Automatic sealing of misdemeanor offenses: https://law.lis.virginia.gov/vacode/title19.2/chapter23.2/section19.2-392.6/
• Va. Code § 53.1-231.2 — Fast-track restoration of rights petition: https://law.lis.virginia.gov/vacode/title53.1/chapter12.1/section53.1-231.2/
• Collateral Consequences Resource Center — Virginia Restoration of Rights & Record Relief: https://ccresourcecenter.org/state-restoration-profiles/virginia-restoration-of-rights-pardon-expungement-sealing/
• Clean Slate Virginia — Major Changes to Virginia's Expungement Law (2025 amendments): https://cleanslatevirginia.com/major-changes-made-to-virginias-new-expungement-law/
• Commonwealth v. Jackson, 255 Va. 552 (1998)
• Necaise v. Commonwealth, 281 Va. 666 (2011)