When Can You Expunge a Criminal Charge in Virginia?

When can you expunge your criminal record?  Can you expunge a criminal charge after pleading guilty to a lesser charge?

Virginia Code § 19.2-392.2 states:

“If a person is charged with the commission of a crime or any offense defined in Title 18.2, and

1. Is acquitted, or

2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.”

In MacDonald v. Commonwealth (Case No. CL2010-13130), the Fairfax County Circuit Court was forced to interpret what constitutes a charge that is otherwise dismissed.  In that case, the petitioner sought to expunge his charge of reckless driving.  In the earlier case, the prosecution moved to reduce the charge of reckless driving to improper driving under Va. Code § 46.2-869 in exchange for his pleading guilty to the same.  The motion was granted and he pled guilty to improper driving.  He, therefore, was not acquitted of reckless driving nor was that charge nolle prossed.

So was the reckless driving charge otherwise dismissed?  The Fairfax County Circuit Court said that it had been otherwise dismissed despite the plea agreement.  The petitioner was therefore able to expunge his charge for reckless driving.