It’s no secret that having a criminal record can have a serious impact on your future. For example, studies find that the unemployment rate is over 20% higher for formerly incarcerated workers than for workers with no record of criminal activity.
Is there any way to overcome these odds? If you’re able to get your records expunged or sealed, the answer is yes. However, this isn’t a process available to everyone.
First, you need to understand the difference between having criminal records expunged vs sealed. Read on to learn the difference from a criminal defense lawyer.
Expunged vs Sealed: The Basics
When we’re talking about having a record expunged, we’re talking about completely erasing or destroying a specific charge from your criminal record. Sealing isn’t as thorough, but a sealed criminal record is no longer visible in many instances. Let’s take a closer look at what these two things would mean for your future.
Expungement and Background Checks
After you expunge a charge from your record, it’s as if it never existed. The record of that charge gets wiped from every state and federal repository.
If anyone runs a background check, from a federal employer to a landlord, this charge won’t show up. You don’t have to mention it at all if asked to discuss your criminal history, even when you’ve sworn to tell the truth.
Record Sealing and Background Checks
A sealed criminal record still exists. However, sealing a record restricts who has access to it. The public generally won’t see a sealed record, even when conducting most employment, housing, or educational background checks.
However, criminal record sealing does not block access to information about that charge in all circumstances. For example, federal employers may still have access to that information. In most cases, law enforcement agencies can also see a sealed criminal record.
Who Is Eligible for Expungement?
Because the expungement process completely erases a charge from a person’s record, Virginia state laws limit eligibility for expungement. In order to petition for expungement, your case must satisfy one of these conditions:
- Defendant found not guilty or acquitted in court
- Case dismissed by the Commonwealth Attorney’s office
- Injured party gets an assault, battery, or misdemeanor charge dismissed
- Defendant received an absolute pardon for a prior conviction
You can also petition to have your record expunged if you were the victim of identity theft and your identification was involved in a criminal case as a result. In 2025, the list of eligible people will expand thanks to new Virginia expungement laws.
What Is a “Manifest Injustice?”
During an expungement hearing, the court will discuss something called “manifest injustice.” The purpose is to determine if leaving a charge on your record is causing (manifesting) injustice in your life. While it may seem obvious that the answer is yes, it’s in your best interest to work with a criminal defense lawyer to build a solid case for expungement.
Who Is Eligible to Have Records Sealed?
Criminal record sealing isn’t as straightforward when it comes to eligibility. Sealing is available to far more people, but you’ll also need to meet several conditions.
For example, you can petition to seal most misdemeanor records after seven years. However, this also assumes that you have no felony convictions from the past 10 to 20 years. If the misdemeanor has to do with drug or alcohol use, you may also need to prove substance abuse rehabilitation.
You can petition to seal some felony charges, as well. For example, the court may seal some Class 5 and 6 felonies. However, the defendant’s record can have very few other charges, if any.
Charges That Can’t Be Sealed
There are some charges that you can never seal regardless of how much time has passed. These include:
- Class 1-4 felonies
- Vehicular maiming or manslaughter
- DUI convictions
- Domestic assault
This is one of the many reasons why you should always seek the counsel of a criminal defense attorney in the face of criminal charges.
Charges That “Fall Off” Your Record
You may not realize that the state of Virginia has already sealed some of your previous charges. Certain misdemeanors qualify for automatic sealing, meaning that they’ll “fall off” your record whether or not you file a petition. (Remember, they’re still visible in some circumstances.)
For example, many misdemeanor charges that did not result in convictions will “fall off” your record after three years. Others that did result in a conviction may “fall off” your record after seven years. This assumes that you were not charged with anything else during that time.
When to Call a Criminal Defense Lawyer About Your Record
As we discussed earlier, it’s not always easy to determine which charges are eligible for expungement or sealing. If you’re unclear about the future of your criminal record, consider consulting a criminal defense attorney to learn more about your options.
Any time you are going to file a petition for expungement or record sealing, work with a criminal defense attorney. After filing a petition with the Circuit Court where you were originally charged, you may face a court hearing. You will need to provide documentation establishing your eligibility, which may include evidence of your rehabilitation.
Though it may seem like a simple process, these hearings require legal expertise to navigate. The judge overseeing your hearing can object to your petition for a number of reasons. An attorney’s job is to discover what those reasons are and prepare a compelling counterargument proving that you deserve a fresh start.
Contact KFFJ Law About Your Criminal Record
Legal expungement services and criminal record sealing can be life-changing, making it easier to find a job, secure housing, and more. Now that you understand the difference between an expunged vs sealed record, it’s time to take the next steps. Our Fairfax criminal defense lawyers can tell you more about what options are available to you.
KFFJ Law has diligently served Northern Virginia for over three decades. We work hard to provide expert legal aid at a price that works for you. Contact us to request a free consultation to get started.
