Is there a time period after which a misdemeanor is dropped from one's record?
Full Question:
Answer:
We cannot give legal advice. The following is not a substitute for the advice of a local attorney. But we hope the information will be useful.
I am going to give you information for expungements in Virginia and South Carolina. But here is what is important: you are not going to be able to do this (if it is possible to get the expungements, which is uncertain) by yourself - you are going to need an attorney in both VA and SC, preferably located in the city where your daughter was "convicted." You are going to have to spend some money doing this, but not a fortune.
There are attorneys who advertise doing expungement work - look them up - call the VA and SC state bar associations if necessary. After an initial consultation, they will do the work for a flat fee (ask for a flat fee). Any attorney with a "criminal defense" practice will probably be able to do this for you.
Your daughter will probably never have to travel to the courts. If it can be done, it can probably be done through paperwork. However, if your daughter has to appear at a hearing, I'm sure she can arrange this due to the consequences she is currently suffering.
Do not get bogged down in the details of the following information - though you may be interested to read it. Most important is for you to contact appropriate attorneys as I have stated above, and have a consultation with them. I hope this response puts you on that road. It is awful that your daughter is having these problems, a consequence of our over-intrusive computer age. Best of luck to you.
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VIRGINIA
In Virginia, expungement is the omission, sealing, deletion, or obliteration of records. Thereafter, the person may legally deny the existence of the records and may not be denied any permit, license, or employment based upon the expunged records. However, expunged records may be disclosed for purposes of employment application as an employee of a law-enforcement agency or for a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record. See VA statutes § 19.2-392.3.
When a record is expunged, the record is not destroyed but removed from public access and sealed.
A person charged and then acquitted, who had charges nolled, or granted an absolute pardon, may petition for expungement. A first-offender arrested for a misdemeanor may have records expunged. Also, any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification. § 19.2-392.2.
Upon receiving a copy of a writ vacating a conviction pursuant to Section 19.2-327.5 or 19.2-327.13, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction.
Under § 19.2-392.2, an eligible person may petition for expungement of police records and court records relating to the charge expunged. Also the division with control of DNA records shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of (i) a written request for expungement pursuant to this section and (ii) a certified copy of the court order reversing and dismissing the conviction. § 19.2-310.7.
TO SEEK AN EXPUNGEMENT:
If a writ vacating a conviction is granted, the Court will automatically forward a copy of the writ to the circuit court, and no petition is necessary.
REQUIRED DOCUMENTS:
-An original Petition for Expungement of Record and a certified copy of the charge with the disposition of the charge(s) that is requested to be Expunged.
-Four additional copies of the Petition for Expungement and charge(s) with disposition of the charge(s) that is requested to be expunged.
The copies will be for the following:
1. One copy to be Attached to Subpoena in Chancery to serve on the Commonwealth Attorney.
2. Three copies will be returned to the petitioner to do the following:
Two of the date stamped copies with attachments are to be taken to the County Police Department with one copy to be attached to a complete set of petitioners fingerprints and the other copy to be retained by the Police Department.
The remaining set is for the Petitioner to retain with their records for proof of filing with the Court.
- Order of Expungement
-A self addressed stamped envelope for the return of the fingerprint cards and a certified copy of the final order.
FINGERPRINT CARDS:
All Petitioner’s are required to obtain a new set of fingerprints for the expungement process. (See §19.2-392.2(E &F)) The petitioner shall obtain from a law-enforcement agency one complete set of their fingerprints and shall provide that law-enforcement agency with two copies of the date stamped petition showing proof that a petition for expungement has been filed with a Circuit Court.
Upon obtaining the set of fingerprint cards, the Police Department will forward one copy of the Petition for Expungement with the set of Fingerprint cards to the State Police to perform a criminal history check. The State Police will then forward the criminal record check under seal to the Court. One copy of the Petition for Expungement will be retained at the local Police Department.
JURISDICTION:
The Petition with a copy of the warrant or indictment if reasonably available shall be filed in the Circuit Court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed and shall contain the following:
- File Number
- Date of Arrest
- Name of Arresting Agency
- Specific Charge to be Expunged
- Date of Final Disposition of the Charge to be Expunged
- Petitioners Date of Birth
- Petitioners Social Security Number
- Full Name used by Petitioner at the time of arrest
- Indicate if the Petitioner has any prior criminal record
For unavailable records that are over ten (10) years old, a destruction letter must be obtained from the Court in which the disposition was rendered.
FILING OF PETITION FOR EXPUNGEMENT:
The Petition for Expungement and other required documents may be filed in person or by mail to the County Circuit Court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed.
The filing fee and service fees must be paid at the time of filing. The Petition will be assigned a Chancery case number.
DOCUMENT TO BE SERVED ON THE COMMONWEALTH ATTORNEY:
The Petition for Expungement must be served on the Commonwealth Attorney with a Subpoena in Chancery. (Rule 2:4) (§19.2-392.2(D))
The Commonwealth Attorney may file an answer or objection within twenty-one days of service or may simply endorse petitioner’s order of Expungement.
SETTING A HEARING DATE:
Once the Commonwealth Attorney has been served and the twenty-one (21) day period, from the date of service has lapsed, and the Court has received the criminal history record information from the Central Criminal Records Exchange a hearing date may be set. An original “Notice of Hearing” must be filed with the Criminal Docket Clerk.
A copy of the Notice of Hearing must be mailed or hand delivered to the Commonwealth Attorney’s Office at least three days’ prior to the hearing date.
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SOUTH CAROLINA
If the offfense involved controlled substances, expungement may be available under Section 44-53-450 (b), which allows for expungement upon the dismissal of the person and discharge of the proceedings against him pursuant to subsection (a), and if the offense did not involve a controlled substance classified in Schedule I which is a narcotic drug and Schedule II which is a narcotic drug.
Expungement may also be available if you successfully completed an alcohol education course or traffic education course.
The process for the expungement of a criminal charge is as follows:
A. Obtain the necessary information for eligibility from the records of the Clerk of Court, Magistrate’s Court, Municipal Court, NCIC, Sheriff’s Department, Police Department, and/or other sources.
B. Prepare and type a proposed Order, acceptable to SC Court Administration.
C. Submit proposed order to SLED to confirm that the criminal charge is statutorily appropriate for expungement.
D. Obtain the signature of the Solicitor/Deputy Solicitor.
E. Obtain the approval and signature of a Circuit Court Judge.
F. File the original signed Order in the Office of the Clerk of Court (The law provides for a filing fee to be paid to the clerk at the time of filing, except category #1.)
G. Obtain certified copies of the Order from the Clerk of Court.
H. Deliver or mail certified copies of the Order to appropriate agencies.
The Solicitor’s Office may process steps A through E for the applicant and will provide the guidance necessary for the applicant to accomplish steps E through H.
A person applying to expunge a criminal record shall obtain the appropriate blank expungement order form from the solicitor’s office in the judicial circuit where the charge originated. The use of this form is mandatory and to the exclusion of all other expungement forms.
In exchange for this service, the applicant is responsible for payment of an administrative fee to the Solicitor’s Office, in the form of a money order, in the amount of two hundred fifty dollars ($250.00) per order, which shall be retained by the Solicitor’s Office to defray the costs associated with this process. In addition, SLED shall receive a twenty-five dollar ($25.00) money order, from the applicant, to confirm that the criminal charge is statutorily appropriate for expungement.
Please see the following SC statutes to determine applicability:
§ 17-22-330. Disposition of traffic-related offense on completion
of program; subsequent violation.
(A) When a person successfully completes a traffic education program,
the governmental agency administering the program shall effect a
noncriminal disposition, as defined in this chapter, of the
traffic-related offense, and there must be no record maintained of the
traffic-related offense except by the appropriate traffic education
program in order to ensure that a person does not benefit from the
provisions of this article more than once.
(B) If applicable, the person may apply to the court for an order to
destroy all official records relating to his arrest.
(C) If a person violates the conditions of a traffic education
program, then the person may be terminated from the program and the
traffic-related offense reinstated by the governmental agency
administering the program in the appropriate municipality or county.
(D) If a person receives a subsequent traffic violation during the six
months following the issuance of the ticket for which he has entered
the traffic education program, he must be terminated from the program
and the traffic-related offense must be reinstated by the governmental
agency administering the program in the appropriate municipality or
county.
§ 17-22-530. Disposition of alcohol-related offense on completion
of program.
(A) When a person successfully completes an alcohol education program,
the circuit solicitor shall effect a noncriminal disposition, as defined
in this chapter, of the alcohol-related offense, and there must be no
record maintained of the alcohol-related offense except by the Commission
on Prosecution Coordination in order to ensure that a person does not
benefit from the provisions of this article more than once.
(B) If applicable, the person may apply to the court for an order to
destroy all official records relating to his arrest.
(C) If a person violates the conditions of an alcohol education
program, the person may be terminated from the program and the
alcohol-related offense reinstated by the circuit solicitor in the
appropriate municipality or county.
"§ 44-53-450. Conditional discharge for first offense.
**Update notice: This section has been amended by
ACT NO. 36 OF 2009
(a) Whenever any person who has not previously been convicted of any
offense under this article or any offense under any State or Federal
statute relating to marihuana, or stimulant, depressant, or
hallucinogenic drugs, pleads guilty to or is found guilty of possession
of a controlled substance under § 44-53-370(c) and (d), except narcotic
drugs classified in Schedule I (b) and (c) and narcotic drugs classified
in Schedule II, the court, without entering a judgment of guilt and with
the consent of the accused, may defer further proceedings and place him
on probation upon terms and conditions as it requires, including the
requirement that such person cooperate in a treatment and rehabilitation
program of a State-supported facility or a facility approved by the
Commission, if available. Upon violation of a term or condition, the
court may enter an adjudication of guilt and proceed as otherwise
provided. Upon fulfillment of the terms and conditions, the court shall
discharge the person and dismiss the proceedings against him. Discharge
and dismissal under this section shall be without court adjudication of
guilt and is not a conviction for purposes of this section or for
purposes of disqualifications or disabilities imposed by law upon
conviction of a crime, including the additional penalties imposed for
second or subsequent convictions. However, a nonpublic record shall be
forwarded to and retained by the Department of Narcotic and Dangerous
Drugs under the South Carolina Law Enforcement Division solely for the
purpose of use by the courts in determining whether or not a person has
committed a subsequent offense under this article. Discharge and
dismissal under this section may occur only once with respect to any
person.
(b) Upon the dismissal of the person and discharge of the
proceedings against him pursuant to subsection (a), and if the offense did
not involve a controlled substance classified in Schedule I which is a
narcotic drug and Schedule II which is a narcotic drug, the person may
apply to the court for an order to expunge from all official records
(other than the nonpublic records to be retained as provided in
subsection (a)) all recordation relating to his arrest, indictment or
information, trial, finding of guilty, and dismissal and discharge
pursuant to this section. If the court determines, after hearing, that the
person was dismissed and the proceedings against him discharged, it shall
enter the order. The effect of the order is to restore the person, in the
contemplation of the law, to the status he occupied before the arrest or
indictment or information. No person as to whom the order has been
entered may be held pursuant to another provision of law to be guilty of
perjury or otherwise giving a false statement by reason of his failure to
recite or acknowledge the arrest, or indictment or information, or trial
in response to an inquiry made of him for any purpose.
