Expungement of Juvenile Records in Virginia
As citizens, we often give allowance for a certain amount of misconduct by juveniles. We recall our own indiscretions, perhaps, or we just simply understand that maturity and experience often come after a failure or misstep. Virginia’s criminal justice system also provides for some latitude in giving juveniles an opportunity to learn from, and move past, mistakes or conduct that land them in front of a judge. One of the most common methods for achieving this, and perhaps the most misunderstood, is the automatic expungement of juvenile records pursuant to Virginia Code Section 16.1-306.
The common misconception about juvenile records is that they are always secret. This is untrue. Juvenile records are generally non-public, but a variety of exceptions provide for certain individuals or agencies to access juvenile records. Another common misconception is that once a juvenile becomes an adult (at age 18 in Virginia), their juvenile record is automatically expunged. This is also untrue. Virginia Code Section 16.1-306 is actually quite clear in explaining not only what juvenile records get expunged, but when.
First, if a juvenile is found delinquent of committing a felony offense—in other words, if the result would have been a guilty finding for a felony if the person were an adult—the records for the offense are never expunged. The Clerk of the Juvenile and Domestic Relations District Court is required to maintain these records. A person may be required to disclose the existence of the offense on any applications (college, work, etc.), depending on the wording of the question. The juvenile record can be used against the person in future sentencing events should the person be convicted of a crime as an adult.
Second, if a juvenile is found guilty of an offense that requires the Clerk of the Court to submit an abstract to the Department of Motor Vehicles (DMV)—in other words, if a juvenile is convicted of any violation of law involving the operation of a motor vehicle, the theft or unauthorized use of a motor vehicle, alcohol-related boating offenses, failures to pay fines, costs or other penalties for traffic offenses, or if the juvenile forfeits a person’s bail, is referred to the court to driver improvement or alcohol treatment program, referral to probation, or the entry of a judgment for damages that requires a license suspension—the records are not expunged until the person turns 29 years old. What is the logic behind this exception? Some traffic offenses, such as DWI, DUI or reckless driving, remain on a person’s driving record for 11 years. A conviction for such an offense committed by a juvenile at age 17 would remain on the juvenile’s driving record for 11 years, so 29 is the age at which all traffic related offenses would be removed from a juvenile’s DMV transcript.
Third, if a juvenile is found delinquent of an offense that would have been a misdemeanor if committed by an adult and there is no requirement to furnish the DMV with an abstract of the result, then the files, papers and records related to that juvenile’s case can be expunged. Eventually. First, a juvenile must reach the age of 19 years old. Second, five years have to have passed since the last hearing in the case. Only then, on January 2 (or some other date designated by the individual court) of the following year will the matter be expunged. It is important to find out the automatic expungement date of your individual jurisdiction because only after the records are destroyed can a person treat the offense as though it never occurred. Until that occurs, a person’s juvenile record is very much in existence and may have to be disclosed, depending on the circumstances.
Expungement of juvenile records in Virginia is unlike the expungement of adult records in this very important respect: a guilty finding can be expunged for a juvenile, but not for an adult. However, the rules that pertain to an adult expungement also apply to a juvenile expungement. If a juvenile is found innocent or the proceeding was otherwise dismissed, a juvenile can file a motion with the Court for an expungement of those records without having to wait until the person turns 19 or until five years have passed. The burden is on the Commonwealth to demonstrate good cause as to why the records should not be destroyed. Once the motion is granted and the Clerk destroys the record, the person can treat the arrest and proceeding as though it never took place.