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  • Norman A. Thomas

Expungement of Criminal Arrest Records: Clarity in Statutory Interpretation Amidst Dissonance Within

On March 1, 2018, the Virginia Supreme Court issued a soon-to-be published opinion in the case, A.R.A. v. Commonwealth of Virginia, 2018 Va. LEXIS 14 (VA. 2018). In the decision, the Court reversed the Circuit Court of Williamsburg (“trial court”) and remanded with instructions to grant A.R.A. (“ARA”) her requested relief.

The Court fractured in deciding the case. Justice Stephen R. McCullough wrote for a four-justice majority, including Senior Justice Russell and Justices Powell and Mims. Chief Justice Donald W. Lemons concurred and filed a separate opinion. Justice D. Arthur Kelsey wrote in dissent joined by Justice Goodwyn.

ARA petitioned the trial court to expunge records concerning a 2014 felony arrest for assault upon a law enforcement officer. See Va. Code §19.2-392.1, et seq. Following the arrest, and prior to preliminary hearing in General District Court, the Commonwealth agreed to amend the felony warrant to charge disorderly conduct. ARA pled guilty to the misdemeanor and the General District Court sentenced her to a fine and suspended jail term. She complied with the terms of that disposition, then filed her expungement petition.

The trial court denied ARA’s petition. The trial court found that the continued existence and possible dissemination of the arrest records did “not cause and may not cause circumstances which constitute a manifest injustice” to ARA. See Va. Code §19.2-392.2(F). Significantly, “[i]n its discussion from the bench, the court focused on the facts surrounding her arrest.”

Although the Commonwealth contended otherwise, the trial court did not address ARA’s status as an “innocent person” potentially eligible for expungement. See Va. Code §§ 19.2.392.1 and 19.2-392(A). The relevant language of Va. Code §19.2-392.2(A), as a prerequisite to expungement eligibility, requires a felony charge to be “otherwise dismissed” within the statute’s intendment. See Dressner v. Commonwealth, 285 Va. 1, 6-7 (2013)(holding that when a warrant is amended to charge a non-lesser-included offense, the original charge is “otherwise dismissed” and eligible for expungement).

Before the trial court, ARA testified to her personal background of high achievement, and about her educational and career goals. For example, she graduated from the College of William and Mary with a 3.8 GPA, and described the specialized children’s media entertainment industry to which she aspired. She stated that her employer had delayed her current internship’s start date due to a background check that revealed her felony arrest.

ARA also recounted a history of community work with children, however, she recently had refrained from applying for certain volunteer positions because of required background checks. She expressed an intention to attend law school or to enroll in an MBA program.

The Commonwealth did not contest ARA’s testimony.

The Court noted that ARA’s fear “is that the positions she is applying for are very competitive and that her arrest record might serve as a disqualifier.” ARA “did not want her career to suffer and did not want the arrest record ‘to define [her] as a person today.’”

The Court framed the “dispositive question” as whether ARA “established that the continued existence and possible dissemination of a felony arrest record would constitute an actual or potential ‘manifest injustice,’” thus satisfying the standard of Va. Code §19.2-392.2(F). It then ruled: (a) that the trial court had abused its discretion to consider the facts surrounding ARA’s arrest in deciding the “manifest injustice” issue, and (b) that ARA’s evidence satisfied the statutory standard.

The Court first discussed Dressner and its interpretation of Va. Code §19.2-392.2(A), regarding whether a charge is “otherwise dismissed” and thereby eligible for expungement. It then ruled as a matter of law that disorderly conduct does not constitute a lesser-included offense of assault upon a law enforcement officer. Thus, ARA’s felony charge was “otherwise dismissed” within the intendment of Va. Code §19.2-392.2(A). ARA occupied “the status of innocent” as to the charge, and was “eligible to seek expungement of that record.”

Turning to the “manifest injustice” issue of Va. Code §19.2-392.2(F), the Court initially ruled that “[r]evisiting the underlying facts of the alleged crime” cannot be reconciled with its Dressner holding. “A petitioner in this circumstance cannot simultaneously occupy the status of innocent and be required to prove her actual innocence of a crime the Commonwealth declined to prosecute.”

The Court then made two key holdings on the “manifest injustice” issue. First, it ruled that the “focus of the expungement hearing ought to be on the impact of an existing record, not a retrial” of the charge subject to expungement. Second, the Court ruled that the “manifest injustice” inquiry “is forward-looking, rather than backward-looking. The inquiry turns on whether the continued existence of the record will or may cause the petitioner a manifest injustice in the future. The inquiry is not backward-looking with respect to the facts of the alleged crime.”

From there, the Court noted numerous examples of its and the General Assembly’s use of the term “manifest injustice.” Without precisely defining the term, the Court noted the “Statement of Policy” within Va. Code §19.2-392.1, to the effect that “arrest records can be a hindrance to an innocent citizen’s ability to obtain employment, an education, and to obtain credit.” It held that the statute “contemplates expungement when a petitioner establishes a reasonable possibility of a manifest injustice.”

Citing Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011), and applying the abuse of discretion review standard, the Court held that the trial court reversibly erred in denying ARA’s expungement petition. The trial court did so by focusing on the facts surrounding her arrest, thereby considering an “irrelevant factor” and giving it “significant weight.”

As to ARA’s evidentiary presentation, the Court held that the “uncontested facts establish a reasonable possibility that the felony arrest record would hinder her career or her educational opportunities, and have hindered the pursuit of her volunteer interests.” It reversed the trial court and remanded “for entry of an order expunging [ARA’s] felony arrest record.”

Chief Justice Lemons’ concurrence acknowledged his agreement with parts of the majority opinion, and with parts of the dissenting opinion. He wrote: “Whatever dissonance that may cause is tracked to the source of the conflict.” The Chief Justice identified that source as the General Assembly’s “statutory scheme that somewhat muddles legislative intent.”

Chief Justice Lemons acknowledged the “Statement of Policy” in Va. Code §19.2-392.1. The General Assembly, “as if to underscore the strength of this public policy statement,” provided for criminal sanctions for unauthorized disclosures of, or inquiries about expunged materials. See Va. Code §§19.2-392.3 and 19.2-392.4. The Chief Justice then noted the “juxtaposition of ‘may’ and ‘shall’ as governing action verbs in the same sentence” of Va. Code §19.2-392.2(F). In that regard, he agreed with the majority that a petitioner need only show potential, not actual prejudice, and that “the thrust of the statutory scheme is ‘forward-looking’ rather than ‘backward-looking.’” A petitioner need not prove her “actual innocence” of a crime the Commonwealth “declined to prosecute."

Yet, even embracing the latter principle, the Chief Justice agreed with the dissent to the effect that “the circumstances of the arrest simply cannot be irrelevant to the inquiry.” Those facts serve to “illuminate the context.”

In the end, the Chief Justice chose to concur with the majority, “because I conclude that, by whatever means of proof employed, the General Assembly intended generous application of this remedial statute, and the trial court abused its discretion by concluding otherwise.”

Justice Kelsey’s dissent took the majority to task on several fronts. He commenced his opinion with “the old adage that ‘bad facts’ make ‘bad law.’”

At the outset, Justice Kelsey strongly disagreed with the majority’s holding that the trial court abused its discretion by considering the facts surrounding ARA’s arrest. He found “this newly discovered axiom to be as unpersuasive as it is unprecedented.”

Justice Kelsey found no language in Va. Code §19.2-392.2 that “expressly or implicitly” forbids such consideration, and “I see no reason why this assumption is or should be true.” He then articulated two hypotheticals involving a person accused of “a violent act of child sexual abuse.” Such individual, obtaining a nolle prosequi upon “irrefutable evidence” of his innocence, might wish to present such evidence in an expungement hearing to enhance the court’s willingness to grant his petition. Conversely, if a pedophile charged with such offense defeats the charge upon a successful “speedy trial” or suppression motion, that person might then seek “a job working with school children. I think that the public would be surprised to learn that, in deciding whether to expunge his arrest record, a court could take no account whatsoever of the circumstances surrounding his arrest…Before issuing such an order, an expungement court should at least find out exactly what it is that the petitioner seeks to hide from the public and factor that into its discretionary decision to grant or deny the petition.”

The dissent also decried the majority’s interpretation of Dressner. Justice Kelsey asserted that Dresser dealt with eligibility of a charge for expungement under Va. Code §19.2-392.2(A), not the statute’s subpart (F) regarding the “manifest injustice” issue.

To crystallize his thesis, Justice Kelsey wrote: “In short, I think it is perfectly reasonable for a court to review the facts underlying an arrest for which a petitioner seeks expungement when nothing in the statute says otherwise…In proffering the facts underlying an arrest the Commonwealth is not seeking to repudiate an acquittal or anything else. It is the petitioner who seeks to repudiate her arrest by seeking an expungement.”

Turning to the “manifest injustice” inquiry, Justice Kelsey viewed it as a “judgment call” that one judge naturally might decide differently than another. He equated “manifest injustice” with “miscarriage of justice,” and noted that the term denoted “a grave, intolerable wrong of such severity that the judicial conscience simply cannot bear to leave it unaddressed.”

Based on his differences with the majority, Justice Kelsey felt that the trial court did not abuse its discretion in denying ARA’s expungement petition. In pointed language, he concluded that ARA’s “predictions of future harm were too speculative, the magnitude of harm too underwhelming, and the circumstances of her arrest too unsympathetic to warrant the de novo appellate relief that the majority gives her.”


I had the privilege to represent ARA in this appeal. I can attest the truth of the one conclusion on which the Court’s members agreed, that she is an intelligent and talented young woman with a bright future. Trial counsel, Michael A. Gaten, Esquire, now a circuit judge-designate, deserves credit for his work to create the record underlying ARA’s appellate success.

The ARA decision clarifies Virginia law regarding both eligibility to seek expungement and application of the “manifest injustice” inquiry. See Va. Code §19.2-392.2(A)(1) and (2), and (F). The former inquiry “looks back,” and the latter “looks forward.” The Court took the opportunity to discuss Dressner’s intended breadth. In the future, counsel representing expungement petitioners surely will cite the ARA and Dressner decisions in tandem.

Without contradiction, the Chief Justice expressly recognized the remedial nature of the statutory scheme for expungement of criminal arrest records. Va. Code §19.2-392.1, et seq. Under Virginia law, remedial statutes receive liberal construction to achieve their intent. See generally Bank of United States v. Merchant’s Bank of Baltimore, 40 Va. 573, 585 (1843)(If a statute is “remedial, the cases to which its extends must be ascertained by those rules of construction which are applied to all remedial statutes. Such statutes are to receive a liberal construction…as may best answer the intention of the maker[.]”).

What of the dissent’s assertion that “it is perfectly reasonable for a court to review the facts underlying an arrest…when nothing in a statute says otherwise”? Does such an interpretive principle comport with Virginia caselaw mandating that statutory interpretation focus upon a statute’s express language, neither adding to nor subtracting from it? Does the language of Va. Code §19.2-392.2(F) contain or implicate application of a “balancing test” to the “manifest injustice” inquiry that includes consideration of the facts underlying an arrest?

And what of the dissent’s hypotheticals concerning one charged with a “violent act of child sexual abuse?” One hypothetical highlighted the potential expungement of an arrest record upon a dismissal, nolle prosequi or “otherwise dismissed” circumstance resulting from a successful speedy trial, evidence suppression, or other motion terminating the charge not on its merits. Is it the Court’s role under the “manifest injustice” inquiry to guard the public against possible unintended legislative consequences? Or is it the role of the General Assembly to amend the statutory scheme to avoid such consequences? Under Virginia caselaw, one could argue forcefully that the role belongs exclusively to the General Assembly.

Yet, the separate majority, concurring and dissenting opinions left the “door ajar” on the unintended consequences issue. The majority specifically did so in its footnote 2, setting the stage for future litigation.

The certainty of future litigation on the unintended consequences issue raises another concern. By definition, all expungement petitioners are individuals. All litigation is expensive, including litigating contested expungement petitions. That expense grows exponentially to prosecute or defend an appeal. In ARA’s situation, despite prevailing on appeal she cannot recover attorneys’ fees or appellate costs from the Commonwealth. See generally Va. Code §17.1-629.

From a public policy perspective, wouldn’t it be best for the General Assembly to consider the unintended consequences issue and, if deemed appropriate, to amend the expungement statutes? Why should the costs to resolve the issue be borne by individual litigants who statutorily constitute “innocent persons” and seek to enhance their access to employment, education, and credit? The costs involved could well serve to deny deserving expungement petitioners the relief to which the law otherwise would entitle them.

As always, I invite you to comment and share your thoughts.

Norman Thomas

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