The High Stakes: Why a Lingering Arrest Record Matters in Fairfax

A publicly accessible arrest record, regardless of the case’s outcome, can create significant barriers to personal and professional advancement. In Virginia’s competitive environment, employers, landlords, and licensing boards often conduct thorough background checks, and a lingering charge can lead to immediate disqualification, perpetuating a cycle of punishment long after the legal matter has been resolved in your favor.

In my years of practice, I’ve seen the real-world damage a non-expunged record can do. A promising job candidate is passed over for a position in the tech corridor. A responsible tenant is denied a lease in a desirable Fairfax neighborhood. A dedicated professional is refused a state license needed to advance their career. These are not abstract fears; they are the concrete consequences of a system where the mere fact of an arrest can be treated as a mark of guilt.

The primary statute governing this process, Virginia Code § 19.2-392.2, provides a path to relief. It acknowledges the harm that an arrest record can cause. The purpose of this law is to provide a mechanism for innocent individuals—those whose charges were acquitted, dismissed, or “nolle prosequi”—to reclaim their clean slate. Without an expungement, these records remain in the Virginia State Police’s Central Criminal Records Exchange (CCRE) and are reported on background checks, often without the context of the favorable outcome. This can lead to unfair assumptions and lost opportunities that can alter the course of a person’s life.

Navigating the Fairfax Expungement Process: A Step-by-Step Breakdown

The expungement process in Fairfax is a formal legal proceeding, not an administrative request. It begins with filing a detailed petition and supporting documents with the Fairfax County Circuit Court, serving notice to the Commonwealth’s Attorney, undergoing a state-level background check, and culminating in a court hearing where a judge makes the final determination.

Successfully navigating this process requires meticulous attention to detail and a thorough understanding of court procedures. Over the years, our firm has refined this process to ensure every step is handled with precision. Here is a breakdown of what a client can typically expect:

1. Initial Eligibility Assessment: The first and most critical step is determining if you are eligible under Virginia law. We review the specific charge, the court where it was heard (e.g., Fairfax County General District Court or Circuit Court), and the final disposition of the case. Was it an acquittal? A nolle prosequi? A dismissal? This determines the path forward.
2. Gathering Essential Documents: We obtain a certified copy of the warrant or indictment and the final disposition order from the court clerk. This is non-negotiable; the court will not proceed without it.
3. Filing the Petition for Expungement: We draft and file a formal “Petition for Expungement” (Form CC-1473) in the Fairfax County Circuit Court. This petition names the Commonwealth of Virginia as the respondent and formally requests the court to order the sealing of your records.
4. Fingerprinting: You must be fingerprinted using a specific form (Form SP-230). These fingerprints are sent to the Virginia State Police, who will conduct a background check and forward a report directly to the court. This step is mandatory and confirms your criminal history for the judge.
5. Service on the Commonwealth’s Attorney: A copy of the filed petition must be formally served on the Fairfax County Commonwealth’s Attorney’s Office. They have the right to object to the expungement and will review the case to determine their position.
6. The Court Hearing: The Fairfax County Circuit Court will set a date for a hearing. In many cases, especially for acquittals, the hearing is a formality, and the Commonwealth’s Attorney may not object. However, for cases dismissed by nolle prosequi, we must be prepared to argue that a “manifest injustice” would occur if the record remains. This is where having seasoned legal counsel is invaluable. I have argued this point successfully in countless hearings, presenting evidence of a client’s good character, career goals, and the specific harm the record is causing.
7. The Expungement Order: If the judge grants the petition, they will sign an Expungement Order. We then ensure this order is sent by the court clerk to all relevant agencies, including the Virginia State Police and the original arresting agency (e.g., Fairfax County Police, Virginia State Police, etc.). These agencies are then legally required to seal their records of the charge.

This is not a process to be taken lightly. Each step has procedural requirements governed by the Code of Virginia, and a misstep can result in the petition being denied, forcing you to start over.

The SRIS Virginia Expungement Eligibility Analyzer

To help potential clients understand their standing before beginning the formal process, we’ve developed this practical checklist based on the criteria set forth in Virginia Code § 19.2-392.2. Answer these questions to get a preliminary idea of your eligibility. This is not legal advice, but a starting point for a more detailed case assessment.

Strategic Approaches to Sealing Your Record in Virginia

A successful expungement strategy goes beyond simply filing paperwork; it involves understanding the nuances of Virginia law, anticipating the Commonwealth’s position, and effectively arguing your case before a Circuit Court judge. The approach changes depending on whether the charge was an acquittal versus a prosecutor-dropped (nolle prosequi) case.

In my experience, the strategic focus of an expungement case falls into two main categories:

Strategy 1: The “Matter of Right” Expungement

This is the most straightforward path. If you were acquitted of a charge, or if the case was dismissed “with prejudice” (meaning it can never be brought again), Virginia law is strongly on your side. The statute creates a presumption in favor of expungement. In these cases, the Commonwealth’s Attorney rarely objects. Our strategy here is one of procedural perfection. We ensure every document is flawlessly prepared, every deadline is met, and the process moves smoothly through the Fairfax County Circuit Court system to a swift and positive conclusion.

Strategy 2: The “Manifest Injustice” Argument

This strategy is required when a charge, particularly a misdemeanor, was disposed of by nolle prosequi. Here, the law grants the court more discretion. The Commonwealth is not prohibited from prosecuting the charge again, so the judge must be convinced that the continued existence of the record creates a “manifest injustice” to you. This is where compelling advocacy becomes critical.

My approach is to build a powerful narrative supported by concrete evidence. We don’t just say the record is harmful; we prove it. This can involve:

• Documenting Denials: Providing rejection letters from employers or landlords that reference the background check.
• Letters of Character: Submitting sworn affidavits or letters from employers, community leaders, or professors attesting to your good character and reputation.
• Evidence of Rehabilitation: Showing academic achievements, professional advancements, and community involvement since the time of the arrest.
• Articulating Future Harm: Clearly explaining how the record is a direct obstacle to specific, tangible goals, such as obtaining a security clearance, a nursing license, or a commercial driver’s license.

Presenting this to a judge requires transforming a legal filing into a human story. It’s about showing the court that you are not defined by a charge that was never proven, and that justice requires the removal of this barrier to your future.

Common Mistakes That Can Derail Your Expungement Petition

Procedural errors are the most common reason an expungement petition is delayed or denied. From filing in the wrong court to failing to properly serve the Commonwealth’s Attorney, these seemingly minor mistakes can completely halt the process, forcing you to start over and incur additional costs.

Over the years, I’ve been hired by clients who attempted to file on their own and ran into trouble. Here are the most frequent and costly mistakes I’ve seen:

1. Misunderstanding Eligibility: The most fundamental error is filing for a charge that is legally ineligible for expungement, such as a conviction or a deferred dismissal under a first offender statute. This results in an automatic denial and forfeiture of the court filing fees.
2. Failing to Obtain Certified Records: The court requires a copy of the warrant/indictment and the final disposition order, certified by the clerk of the court where the case was heard. A simple photocopy is not sufficient and will cause your petition to be rejected.
3. Incorrectly Filing the Petition: The Petition for Expungement must be filed in the Circuit Court of the jurisdiction where the charge was brought (i.e., Fairfax County Circuit Court for a Fairfax charge), even if the original case was in a lower court like the General District Court.
4. Improper Service of Process: You cannot simply mail a copy of the petition to the Commonwealth’s Attorney. It must be formally served according to the Rules of the Supreme Court of Virginia. Failure to provide proof of proper service is a common reason for a judge to dismiss the petition.
5. Neglecting the Fingerprint Requirement: The court cannot proceed with the hearing until it receives the report from the Virginia State Police, which is generated from your fingerprint submission. Delaying this step will indefinitely delay your case.
6. Being Unprepared for the Hearing: For nolle prosequi cases, arriving at court without a well-reasoned argument and supporting evidence for “manifest injustice” is a recipe for denial. A judge is not required to grant your petition and must be persuaded that it is warranted under the law.

Avoiding these pitfalls is a primary reason individuals retain our firm. We manage the entire process, ensuring every form is correct, every deadline is met, and every legal argument is sound.

Glossary of Key Virginia Expungement Terms

Expungement

The legal process of sealing or destroying records of a criminal charge from court files, police records, and other official databases. In Virginia, it primarily involves sealing the records.

Petitioner

The person who files the Petition for Expungement (i.e., you, the individual seeking to clear your record).

Respondent

The opposing party in an expungement case, which is always the Commonwealth of Virginia.

Nolle Prosequi

A Latin term meaning “unwilling to pursue.” It is a formal declaration by a prosecutor to drop a case, either temporarily or permanently.

Acquittal

A formal finding by a judge or jury that a defendant is not guilty of the crime with which they have been charged.

Disposition

The final outcome or resolution of a criminal case (e.g., guilty, not guilty, dismissed, nolle prosequi).

Manifest Injustice

A legal standard used in some expungement cases. The petitioner must prove that the continued existence of their arrest record causes a clear and obvious injustice, such as a significant barrier to employment or housing.

Common Scenarios We Encounter in Our Practice

These anonymized scenarios reflect the real-life situations our clients face and the ways expungement can provide a crucial remedy.

Scenario 1: The Young Professional with a College Mistake

A recent graduate from George Mason University was offered a promising job with a federal contractor in Reston, contingent on a background check. The check revealed a misdemeanor charge for shoplifting from five years prior. The case had been dropped (nolle prosequi) by the Fairfax prosecutor, but the arrest itself was enough for the company to rescind the offer due to security clearance requirements. The client was devastated. We successfully petitioned the Fairfax County Circuit Court, arguing that this single, unproven charge from his youth was causing a “manifest injustice” by derailing a promising career. The expungement was granted, and he was later able to secure a similar position.

Scenario 2: The Nurse Falsely Accused

A registered nurse in Fairfax was falsely accused of assault by a disgruntled patient. After a thorough investigation, the charges were completely dismissed by the judge. However, the arrest record was flagged during her mandatory background check for her nursing license renewal with the Virginia Board of Nursing. This triggered a stressful and invasive inquiry that threatened her livelihood. We filed for an expungement on the basis of the dismissal. Because it was a full dismissal, the process was straightforward. Once the order was granted, we provided a certified copy to the Board of Nursing, which closed its inquiry and cleared her license for renewal.

Scenario 3: The Case of Mistaken Identity

A client was arrested based on an incorrect witness identification for a property crime in Fairfax City. Weeks later, the actual perpetrator was found, and all charges against our client were withdrawn. Despite his complete innocence, the arrest record persisted. He was a coach for a youth sports league and was terrified the record would surface during the annual volunteer background check. We filed for expungement on the grounds of an acquittal (as the charges were dropped due to actual innocence). The petition was granted without objection, permanently clearing his name and allowing him to continue serving his community without fear.

Frequently Asked Questions About Fairfax Expungements

1. How long does the expungement process take in Fairfax?

Typically, the process takes between four to six months from the time the petition is filed to the final court order. This timeline can be affected by the court’s docket, the responsiveness of the Virginia State Police, and whether the Commonwealth’s Attorney contests the petition.

2. Can I get a felony conviction expunged in Virginia?

No. Under current Virginia law, convictions for felonies (and most misdemeanors) are not eligible for expungement. The only exception is if you receive an absolute pardon from the Governor on the grounds of “manifest innocence,” which is an exceedingly rare event.

3. What is the difference between expungement and sealing a record?

In Virginia, the terms are often used interchangeably. The legal process is called expungement, and the practical result is the sealing of the records from public view. The records are not physically destroyed but are removed from public access and stored separately.

4. If I get my record expunged, do I have to disclose the arrest on a job application?

Once the expungement order is granted, you can legally state that you were not arrested for that charge on most job applications. However, there are exceptions for certain government jobs, security clearances, or law enforcement applications where disclosure may still be required.

5. What if my charge was in another Virginia county but I live in Fairfax now?

You must file the Petition for Expungement in the Circuit Court of the county or city where the charge originated, not where you currently reside. If you were charged in Arlington, you must file in Arlington Circuit Court, even if you live in Fairfax.

6. My charge was dismissed after I completed community service and a class. Can I get it expunged?

Generally, no. If your charge was dismissed as part of a “deferred disposition” under statutes like Va. Code § 18.2-251 (first offender drug possession) or § 19.2-303.2 (deferred judgment for property crimes), the law specifically prohibits you from having that charge expunged.

7. What does “nolle prosequi” really mean for my record?

It means the prosecutor chose to drop the charges. While this is a favorable outcome, it is not an acquittal. The arrest record remains, and without an expungement, it will appear on background checks. For expungement purposes, you may have to prove “manifest injustice.”

8. How much does it cost to get a record expunged?

The costs include court filing fees (which can be around $90 in Fairfax Circuit Court), the cost of fingerprinting, and legal fees for the attorney handling your case. The total cost can vary depending on the complexity of the case.

9. Will the Commonwealth’s Attorney fight my expungement?

It depends on the case. For acquittals and many dismissals, they typically do not object. For nolle prosequi cases, especially if the original charge was serious or if you have a prior record, they may object. This is why having an experienced attorney is critical.

10. Can I expunge a traffic infraction?

No. The expungement statute (Va. Code § 19.2-392.2) applies only to criminal charges, not routine traffic infractions. However, a criminal traffic offense like Reckless Driving or DUI that resulted in a dismissal or acquittal would be eligible.

11. What happens to my record on the internet after an expungement?

An expungement order only applies to official government records (courts, police). It does not automatically remove information from private background check companies or “mugshot” websites. It can, however, provide the legal basis to demand they remove the outdated and sealed information.

12. Do I have to appear in court for the hearing?

In many straightforward cases, especially if the Commonwealth does not object, your attorney may be able to appear on your behalf. However, it is always best to be prepared to attend, particularly if a “manifest injustice” argument is needed.

13. My case was “taken under advisement.” Is that eligible for expungement?

It depends on the final outcome. If the case was taken under advisement and ultimately dismissed, then yes, it is likely eligible. If it resulted in a conviction, it is not.

14. Can I expunge a charge if I received a pardon?

It depends on the type of pardon. A “simple” pardon forgives the crime but does not erase the conviction, so it is not eligible for expungement. An “absolute” pardon based on a finding of actual innocence does make you eligible for expungement.

15. Is it worth hiring a lawyer for an expungement?

While you can technically file on your own, the process is filled with procedural traps. A seasoned attorney ensures it is done correctly the first time, drafts a persuasive argument if needed, and navigates the court system efficiently, which can save you significant time, stress, and the risk of a denial.