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HB 5146 - Authorizes a Person to File a Petition Requesting Expungement in Certain Circumstances - Virginia Key Vote

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Title: Authorizes a Person to File a Petition Requesting Expungement in Certain Circumstances

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Title: Authorizes a Person to File a Petition Requesting Expungement in Certain Circumstances

Vote Smart's Synopsis:

Vote to amend and pass a bill that authorizes a person to file a petition requesting expungement of police and court records in certain circumstances, among other provisions.

Highlights:

 

  • Establishes the Expungement Fee Fund (Sec. 1).

  • Authorizes a person to file a petition requesting expungement of police and court records relating to a charge or conviction if (Sec. 1):

    • The person is acquitted; 

    • A nolle prosequi is taken;

    • The charge is otherwise dismissed;

    • The person is convicted of a violation of § 4.1-305 or 18.2-250.1 or subsection B of § 18.2-371.2, the person was under 21 years of age on the date of the incident leading to the conviction, all fines and orders of restitution have been satisfied, and 5 years have passed since the date of the conviction;

    • The person was charged with a violation of § 4.1-305, 18.2-250, or 18.2-250.1, such charge was discharged and dismissed as provided in § 4.1-305 or 18.251, and all court costs and fines and all orders of restitution have been satisfied; or

    • The person is convicted, has received a simple pardon for the commission of the crime or offense for which they seek expungement, has been of good behavior for the 5 years preceding the filing of their petition, and the conviction is not for a violent felony, any crime ancillary to such a conviction, or for a violation of §18.2-248, 18.2-248.01, 18.2-248.1, 18.2-255, 18.2-255.2, 18.2-258.02, or 24.2-1016. 

  • Prohibits a person from being required to pay any fees or costs for filing a petition if the petition (Sec. 1):

    • States that the final disposition of the criminal charge, civil offense, or conviction eligible for expungement occurred within the last 12 calendar months and that the petitioner was represented by court-appointed counsel or a public defender; or 

    • Requests a determination of indigency by the court with which the person intends to file their expungement petition. 

  • Requires any costs and expungement fees collected to be deposited in the Expungement Fee Fund (Sec. 1).

  • Requires the court to appoint counsel to file a petition for expungement and represent the petitioner in the expungement proceedings if a petitioner qualifies to file a petition for expungement without payment of fees and costs and has requested court-appointed counsel (Sec. 1).

  • Requires counsel appointed to represent such a petitioner to be compensated for their services on an hourly basis in a total amount not to exceed $300 paid from the Expungement Fee Fund (Sec. 1).

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Title: Establishes a Process for Automatic Expungement of Criminal Records for Certain Convictions

Vote Smart's Synopsis:

Vote to pass a bill that establishes a process for automatic expungement of criminal records for certain convictions, effective July 1, 2021.

Highlights:

  • Establishes an automatic system to expunge certain abandoned or dismissed charges, convictions, or felonies after 8 years if no subsequent convictions are presented (Sec. 1).

  • Prohibits records automatically expunged from being seen unless applying for a position in law enforcement or in federal or state government (Sec. 1).

  • Authorizes expunged records of misdemeanors and felonies to be sealed but not destroyed (Sec. 1).

  • Specifies that neither an executive secretary nor a circuit court clerk can make an offense that was ordered to be expunged available for public viewing (Sec. 1).

  • Requires the expunged name of the individual charged with the offense to be removed from any decision or order of the Supreme Court in reference to the charge, unless other offenses are included that are not being expunged (Sec. 1).

  • Requires the executive secretary of the Supreme Court to remove the decision or order from Virginia’s Judicial System website and replace it with a redacted form (Sec. 1).

  • Requires warrants to reference the offense with both the citation and the specific provision of state code (Sec. 1).

  • Prohibits entry of an automatic expungement order from serving as grounds for the expungement of an individual’s DNA profile or any records within data banks in relation to the DNA profile (Sec. 1)

  • Prohibits records relating to the arrest, criminal charge, or conviction of a person for a violation of marijuana possession, including any violation that was deferred and dismissed, from public inspection, provided that these records be disseminated (Sec. 1):

    • To any employer or prospective employer where federal law requires inquiry of prior criminal charges or convictions;

    • To any employer or prospective employer of a position which the duties assigned are subject to any requirement imposed in the interest of the United States national security;

    • To any person authorized to collect court costs, fines, or restitution;

    • To administer and utilize DNA analysis and data banks to publish decisions of the Supreme Court and Court of Appeals;

    • To any full or part-time employee of a court, the Office of the Executive Secretary, the Division of Legislative Services, or the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary for the purpose of screening any person for full-time or part-time employment as a clerk, magistrate, or judge with a court or the Office of the Executive Secretary;

    • To any employer or prospective employer where the state code requires inquiry of prior criminal charges or convictions; and

    • To the person arrested, charged, or convicted of the offense which was automatically expunged.

  • Prohibits private employers who are exempt from federal regulations in the hiring process from inquiring about criminal history unless (Sec. 1):

    • The individual is applying for full or part-time employment or volunteer work with the police force;

    • State code requires the employer to make such an inquiry;

    • Federal law requires the employer to make such an inquiry; or

    • The position is subject to requirements imposed in the interest of national security.

  • Specifies that law enforcement agencies and clerks of court can only submit reports to the Central Criminal Records Exchange (Sec. 1).

  • Requires any offense or conviction listed under subsections A and B of state code section 19.2-392.6 to be automatically expunged if (Sec.1);

    • For an offense that was deferred and dismissed, 8 years have passed since the date of the dismissal and the person charged with the offense has not been convicted of violating any law that requires a report to the Central Criminal Records Exchange;

    • For a misdemeanor conviction, 8 years have passed since the date of the conviction and the person convicted of the offense has not been convicted of violating any law that requires a report to the Central Criminal Records Exchange; and

    • For a felony conviction, 8 years have passed since the date of the conviction or release from incarceration, whichever date occurred later, and the person convicted of the offense has not been convicted of violating any law that requires a report to the Central Criminal Records Exchange.

  • Specifies that no offense will be automatically expunged if, on the date of the deferral or dismissal, the person was convicted of another offense that is not eligible for automatic expungement (Sec. 1).

 

Title: Establishes a Process for Automatic Expungement of Criminal Records for Certain Convictions

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