In 2021, the General Assembly created a new remedy for individuals with criminal histories that it called “sealing.” Sealing restricts dissemination of criminal history record information contained in the Central Criminal Records Exchange (CCRE) and prohibits dissemination of court records. Under the Act of Assembly, Chapter 524, the provisions of the new law shall become effective on July 1, 2025, unless the necessary systems are put into place before then.
Unlike Expungement, “sealing” does not make a record inaccessible. Instead, “sealed” criminal history record information is retained in the CCRE with limited access. “Sealed” court records are still retained, although of course they will eventually be destroyed in accordance with current record retention laws and schedules. However, “sealed” court records are removed from the OES online case information system.
Once a conviction is sealed, under §19.2-392.5 and §19.2-392.13, the person who was arrested, charged, or convicted of the offense that was ordered to be sealed may deny or not disclose to any state or local government agency or to any private employer in the Commonwealth that such an arrest, charge, or conviction occurred. Under §19.2-392.5, if law enforcement is asked about a “sealed” conviction, they must reply that no record exists with respect to an arrest, charge, or conviction that has been sealed, unless an exception exists.
Unlike expungement, sealing has many exceptions. For example, §19.2-392.13(I) provides that “the provisions of this section shall not prohibit the disclosure of sealed criminal history record information or any information from such records among law-enforcement officers and attorneys when such disclosures are made by such officers or attorneys while engaged in the performance of their duties for purposes solely relating to the disclosure or use of exculpatory, mitigating, and impeachment evidence or between attorneys for the Commonwealth when related to the prosecution of a separate crime.”
Sealing By Petition
§19.2-392.12 provides a new procedure for individuals to have convictions sealed. Under (A), a person who has been convicted of or had a charge deferred and dismissed for a:
(i) misdemeanor offense,
(ii) Class 5 or 6 felony, or
(iii) violation of 18.2-95 or any other felony offense in which the defendant is deemed guilty of larceny and punished as provided in 18.2-95
may file a petition requesting sealing of the criminal history record information and court records relating to the charge or conviction,
The following individuals may not obtain sealing: Persons who--
(a) have been convicted of a Class 1 or 2 felony or any other felony punishable by imprisonment for life,
(b) have been convicted of a Class 3 or 4 felony within the past 20 years, or
(c) have been convicted of any other felony within the past 10 years of the petition.
§19.2-392.12 specifically excludes DUI-related offenses and domestic assault and battery, making those offenses ineligible for sealing. Specifically:
§18.2-36.1 (involuntary manslaughter, DUI etc) §18.2-36.2 (involuntary manslaughter, watercraft DUI etc) §18.2-51.4 (DUI maiming)
§18.2-51.5 (watercraft DUI maiming)
§46.2-341.24 (DUI commercial vehicle)
There is no fee for indigent individuals. Indigent individuals may qualify for court-appointed counsel, to be compensated at no more than $120 per filing.
A court may only issue a “sealing” order if:
During a period after the date of (i) dismissal of a deferred charge, (ii) conviction, or (iii) release from incarceration of the charge or conviction set forth in the petition, whichever date occurred later, the person has not been convicted of an offense reportable to the CCRE, excluding traffic infractions under Title 46.2, for the following periods:
a. Seven years for any misdemeanor offense; or b. Ten years for any felony offense
If the records relating to the offense indicate that the occurrence leading to the deferral or conviction involved the use or dependence upon alcohol or any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, the petitioner has demonstrated his rehabilitation
The petitioner has not previously obtained the sealing of two other deferrals or convictions arising out of different sentencing events; and
The continued existence and possible dissemination of information relating to the charge or conviction of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner.
Automatic Sealing of Convictions
Under §19.2-392.6(B), if a person was convicted of a violation of any of the following sections, such conviction, including any records relating to such conviction, shall be ordered to be automatically sealed
§ 4.1-305, § 18.2-96, § 18.2-103, § 18.2-119, § 18.2-120, or § 18.2-134; a misdemeanor violation of § 18.2-248.1; or § 18.2-250.1 or § 18.2-415.
If Federal law prohibits DMV from sealing a record, DMV is not required to do so under 19.2-392.13.
Automatic sealing under §19.2-392.6(B) requires that seven years have passed since the date of the dismissal or conviction and the person charged with or convicted of such offense has not been convicted of an offense reportable to the CCRE, excluding traffic infractions under Title 46.2, during that time period. Automatic sealing under (A) is not available if, on the date of the deferral or dismissal, the person was convicted of another offense that is not eligible for automatic sealing under subsection A or B.
No conviction listed under subsection B shall be automatically sealed if, on the date of the conviction, the person was convicted of another offense that is not eligible for automatic sealing under subsection A or B.
The process, which takes place on at least a monthly basis, is established by §19.2-392.7.
In short, the Virginia State Police reviews CCRE for eligible offenses. Next, the Virginia State Police sends list to OES and Circuit Court Clerks. The OES then sends a list to Circuit Court Clerks. Thereupon, the Chief Judge of Circuit Court enters an order. The Circuit Court Clerk then sends the order to the VSP, and the VSP notifies other agencies and seals records.
Automatic Sealing of Acquittal/NP/Dismissal
Under §19.2-392.8, there is automatic sealing of offenses resulting in acquittal, nolle prosequi, or dismissal. If a person is charged with the commission of a misdemeanor offense, excluding traffic infractions under Title 46.2, and (i) the person is acquitted, (ii) a nolle prosequi is entered, or (iii) the charge is otherwise dismissed, excluding any charge that is deferred and dismissed after a finding of facts sufficient to justify a finding of guilt, the court disposing of the matter shall, at the time the acquittal, nolle prosequi, or dismissal is entered, order that the charge be automatically sealed.
Under §19.2-392.8, a party may object and stop automatic sealing at the time, if:
1. The charge is ancillary to another charge that resulted in a conviction or a finding of facts sufficient to justify a finding of guilt;
2. A nolle prosequi is entered or the charge is dismissed as part of a plea agreement;
3. Another charge arising out of the same facts and circumstances is pending against the person;
4. The Commonwealth intends to reinstitute the charge or any other charge arising out of the same facts and circumstances within three months;
5. Good cause exists, as established by the Commonwealth by a preponderance of the evidence, that such charge should not be automatically sealed; or
6. The person charged with the offense objects to such automatic sealing.
However, on at least an annual basis, §19.2-392.11 requires State Police to identify all persons with finalized misdemeanor case dispositions that resulted in (i) an acquittal, (ii) a nolle prosequi, or (iii) a dismissal, excluding any charge that was deferred and dismissed after a finding of facts sufficient to justify a finding of guilt, where the criminal history record of such person contains no convictions for any criminal offense and where such criminal history record contains no arrests or charges for a violation of any law in the past three years, excluding traffic infractions under Title 46.2. Such cases will be automatically sealed as well.
Regarding felony offenses, under §19.2-392.8(B), if a person is charged with the commission of a felony offense and is acquitted, or the charge against him is dismissed with prejudice, he may immediately upon the acquittal or dismissal orally request that the records relating to the charge be sealed. However, for that sealing to take place, the Court must have the concurrence of the attorney for the Commonwealth.
§19.2-392.9 also provides for automatic sealing in cases of mistaken identity or unauthorized use of identity cases.