Sealing of Criminal Records

The types of petition sealing are:

• Petition sealing of misdemeanor and felony convictions, deferred dismissals, and related ancillary matters (numerous ineligible and excluded offenses); and,
• Automatic petition sealing of misdemeanor convictions and deferred dismissals eligible for automatic sealing that were unable to be sealed through the automatic process, certain other misdemeanor convictions and deferred dismissals not eligible for automatic sealing, and related ancillary matters.

Petition sealing is designed to cover a broader class of offenses and includes additional criteria that must be met for an offense to be sealed. Automatic petition sealing is intended for offenses that were meant to be automatically sealed but were not, either because the offense was not in the CCRE or there was a clerical or transmission error. Automatic petition sealing also addresses offenses that cannot be electronically identified within the CCRE for sealing, including underage possession of alcohol, possession of marijuana-related drug paraphernalia, deferred and dismissed offenses, and ancillary matters.

A wide variety of convictions and deferred dismissals for the following types of offenses are eligible for petition sealing:

• Misdemeanors;
• Class 5 and 6 felonies; and,
• Grand larceny, along with other felony offenses punishable as larceny.

In addition, ancillary matters may be sealed if they are related to the offense that a person is petitioning to seal and are specifically identified in the petition.

Some of common offenses that are eligible for petition sealing include assault and battery, larceny 3rd or subsequent, drug possession, distribution of marijuana, destruction of property, possession or distribution of drug paraphernalia, and reckless driving.

Yes. A number of offenses are ineligible for petition sealing. A person cannot petition to seal any Class 1, 2, 3, and 4 felonies, or a variety of unclassified felonies. In addition, several misdemeanors and felonies are specifically excluded from eligibility.

There are 19 provisions which exclude the following types of offenses from sealing eligibility: sex crimes, violent felonies, sex trafficking, felonies involving the use of a firearm, protective order violations, hate crimes, animal cruelty, election laws, date rape drug offenses, not guilty by reason of insanity dispositions, dangerous or vicious dogs offenses, and crimes against family or household members.

In addition, any conspiracy, attempt, or solicitation to commit an ineligible offense, or anyone acting as a principal in the second degree or an accessory before or after the fact will be barred from sealing the offense. While there are a significant number of ineligible and excluded offenses, the majority of Class 5 and 6 felonies, as well as the vast majority of misdemeanors, will remain eligible for sealing.

A list of ineligible and excluded offenses can be found here.

In order for a circuit court to grant a petition under the petition sealing statute, the person who is petitioning to seal an offense must prove that:

1. Based on the date that the sealing petition was filed, the petitioner has:

• Never been convicted of a Class 1 or 2 felony, or any other felony offense punishable by a life sentence;
• Not been convicted of a Class 3 or 4 felony within the past 20 years; and,
• Not been convicted of any other felony within the past 10 years.

2. At least 7 years must have passed for a misdemeanor, or at least 10 years for a felony, and during that time the petitioner cannot have been convicted of an offense that requires a report to the Virginia CCRE, or of any crime in any other state, the District of Columbia, or the United States or one of its territories, excluding traffic infractions. These 7- and 10-year time periods are calculated from the date of the following events, based on whichever date occurred latest in time:

• Dismissal of the deferred offense to be sealed;
• Conviction for the offense to be sealed;
• Release from incarceration on the offense to be sealed;
• A finding that the person was in violation of a suspended sentence, probation, or parole related to the offense to be sealed; or,
• Release from incarceration following a finding that the person was in violation of a suspended sentence, probation, or parole related to the offense to be sealed.

3.If the offense to be sealed involved the use of or dependence upon alcohol or some other drug, the petitioner must demonstrate their rehabilitation.

4. If the petitioner was ordered to pay restitution on the offense to be sealed, that restitution has been paid in full.

5. The petitioner has not previously had two sealing petitions granted under this section (lifetime limit of two granted petitions).

6. The continued existence and possible dissemination of the records of the offense to be sealed causes or may cause a manifest injustice to the petitioner.

The automatic petition sealing statute includes two categories of offenses that are eligible for sealing. First, convictions, deferred dismissals, and specifically identified ancillary matters for the following nine misdemeanors with an offense date on or after January 1, 1986, are eligible:

• Underage alcohol offenses (§ 4.1-305);
• Petit larceny (§ 18.2-96);
• Shoplifting (§ 18.2-103);
• Trespassing (§ 18.2-119);
• Instigating trespass (§ 18.2-120);
• Trespass on posted property (§ 18.2-134);
• Distribution of marijuana (§ 18.2-248.1(a)(1));
• Sale or possession of drug paraphernalia (§ 18.2-265.3(A)); and,
• Disorderly conduct (§ 18.2-415).

Second, the statute allows for the sealing of specifically identified ancillary matters related to a conviction or non-conviction that was automatically sealed, as well as specifically identified ancillary matters related to a possession of marijuana offense that was automatically sealed by statute. For ancillary matters related to a conviction or non-conviction, the offense date for the conviction or non-conviction must have been on or after January 1, 1986. There is no offense date restriction for sealing an ancillary matter related to a possession of marijuana offense.

The criteria that must be proven by a petitioner in order for the court to grant an automatic sealing petition will differ depending on what the petition is requesting to seal.

To grant a petition to seal one of the nine specified misdemeanor offenses listed above (conviction or deferred dismissal, along with any related ancillary matter), the court must find that, during the 7-year period following the date of conviction or deferred dismissal, the person (i) has not been convicted of any other crime in Virginia that requires a report to the CCRE and (ii) has not been convicted of a crime in any other state, the District of Columbia, or the United States or one of its territories, excluding traffic infractions. In addition, the person cannot have been convicted of a separate offense ineligible for petition sealing under this statute on the same date as the conviction or deferred dismissal to be sealed.

In order to grant a petition to seal an ancillary matter related to a conviction or non-conviction that has been automatically sealed or a possession of marijuana offense automatically sealed by statute, the court must find that the underlying conviction, non-conviction, or possession of marijuana offense has been sealed. In addition, the person cannot have been convicted of a separate crime that is not eligible for petition sealing under this statute on the same date as the conviction or deferred dismissal to be sealed.

Yes. A person can only have two petitions granted in their lifetime under the petition sealing statute.

No. There is no limit on the number of petitions that can be granted in a person’s lifetime under the automatic petition sealing statute.

No. Petitions under both the petition sealing statute and the automatic petition sealing statute can include multiple offenses and ancillary matters.

A petition filed under the petition sealing statute may include multiple charges and convictions, along with related ancillary matters, so long as the charges and convictions arose from the same criminal event and are all eligible for sealing. The criminal event is determined by the offense date of the charges or convictions, and not the offense date of any related ancillary matter. For example, if a person was convicted of grand larceny and later found in violation of probation for that conviction, the probation violation is not treated as a separate criminal event. Therefore, the probation violation could be included in a petition to seal the grand larceny conviction.

A petition under the automatic petition sealing statute can include multiple charges, convictions, and ancillary matters, so long as all the offenses included in the petition are eligible for sealing under the statute.

No. There are no court fees or costs to file a sealing petition under either the petition sealing statute or the automatic petition sealing statute.

A person may need to pay other fees as part of the petition process, such as fees for serving the petition on the Commonwealth’s Attorney. To avoid any potential service fees, a person can hand-deliver or mail a copy of the sealing petition to the Commonwealth’s Attorney.

The petition must be filed in the circuit court in the county or city where the charge, conviction, or related ancillary matter to be sealed was concluded. For example, if a person was convicted of misdemeanor destruction of property in the Richmond City General District Court and later seeks to seal that conviction, the petition should be filed in the Richmond City Circuit Court.

OES is developing a form to assist with drafting a sealing petition, which can then be filed with the circuit court. This form is expected to be available on the Virginia Judicial System website when the sealing laws go into effect.

Yes. A person also needs to provide a copy of the warrant, summons, or indictment for the charge, conviction, or ancillary matter to be sealed, unless those documents are not reasonably available. If those documents are not available, the petition must state the reason why.

In addition, after the petition is filed, the person must request that the CCRE (VSP) send a copy of their Virginia and national criminal history record to the court. VSP will create an online portal that allows individuals to request their criminal history record be sent electronically to the circuit court. If a person is unable to use the online portal, they will need to submit a written request for VSP to send their criminal history record to the circuit court.

No. A person will only need to provide certain personally identifying information to VSP, such as their name, date of birth, and social security number, in order to request that their criminal history record be sent to the circuit court.   

No. The statutes do not authorize the court to appoint counsel to assist a person with filing or litigating a sealing petition. A person can search for private attorneys, legal bar organizations, or other private entities who offer free legal assistance with sealing petitions. Otherwise, a person needing help with the sealing process will need to hire an attorney at their own expense.

No. The circuit court may grant or deny a sealing petition without a hearing. The circuit court may grant a sealing order without a hearing under either the petition sealing statute or the automatic petition sealing statute if the Commonwealth’s Attorney gives written notice that they do not object to the sealing petition and:

• For petition sealing, states in writing that the offense is eligible for sealing and that the continued existence and possible dissemination of the records of the offense to be sealed causes or may cause a manifest injustice to the petitioner; or,
• For automatic petition sealing, states in writing that the offense is eligible for sealing.

Yes. Either party can appeal a circuit court’s ruling on a sealing petition. Therefore, if the petitioner disagrees with a circuit court’s decision to deny a sealing petition, or the Commonwealth’s Attorney disagrees with a circuit court’s decision to grant a sealing petition, either can appeal as provided by law in civil cases.