Can You Get a DUI Off Your Record in Virginia?
In a few cases, yes, but in most cases, it’s complicated. Virginia has a broad record expunction and sealing program. Expunged records almost literally disappear, and sealed records disappear for most purposes. However, such relief is unavailable in most DUI matters. Nevertheless, relief is available in this area, so a DUI conviction need not haunt defendants forever. More on that below.
Getting a DUI off your record in Virginia is often a fallback position for a Leesburg criminal defense lawyer. DUIs are difficult to prove in court. Field sobriety tests, Breathalyzer tests, and other intoxication tests are quite unreliable. If a lawyer effectively challenges the state’s evidence, the state may lack enough proof to establish guilt beyond any reasonable doubt on all elements of the offense. Nevertheless, it’s always good to know there’s a Plan B.
Expungement and Dismissal
Sometimes, the evidence in DUIs is extremely weak. Complete refusal cases are a good example. If the defendant doesn’t perform field sobriety tests and doesn’t provide a chemical sample, the state has basically no evidence at trial.
Expungement is available if your case was dropped or dismissed for cause. Falling-through-the-cracks dismissals usually don’t qualify. Prosecutorial discretion dismissals usually don’t qualify either.
On a related note, DUI record expunction is also available if the defendant was found not guilty at a bench or jury trial, or an appeals court vacated and remanded a DUI conviction and case.
Deferred Disposition
Quite frequently, the evidence is sufficient to move forward, but for prosecutors, the odds of winning at trial are long. If a Leesburg criminal defense lawyer excludes the chemical test, perhaps because the Breathalyzer wasn’t properly calibrated, prosecutors may not feel good about their chances with just circumstantial evidence.
During plea negotiations, prosecutors often offer deferred disposition in these situations. The defendant pleads guilty or no contest, but the judge doesn’t say the magic words “I find you guilty.” Instead, the judge deferred that portion of the plea until after probation is complete. If the defendant had a good record that included no motions to revoke, the judge dismisses the case.
The arrest record remains, but most private sector inquirers, like employers and landlords, only care about convictions. To assist this process, a Leesburg criminal defense lawyer often convinces a judge to terminate probation early or make the conditions less restrictive.
Executive Pardon
We include this option because, contrary to popular myth, an executive pardon is a long shot, but not a Hail Mary pass.
Timing matters. Usually, governors consider most pardon requests at the end of their terms. Furthermore, the pardon request must jive with the governor’s political agenda. Finally, governors are more willing to consider pardons if the applicant’s sentence ended at least ten years previously, the applicant has been a model citizen since then, and the applicant has suffered discernable harm because of the condition.
As a rule of thumb, governors consider about one in ten appropriately timed pardon requests and they grant about one in ten of these requests.
Work With a Thorough Loudoun County Lawyer
There’s a big difference between an arrest and a conviction in criminal law. For a confidential consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. We routinely manage matters throughout Virginia.
Source:
law.lis.virginia.gov/vacodefull/title19.2/chapter23.1/
