What is the Difference Between Having a Juvenile Record Sealed and Expunged?

When a person is convicted of a misdemeanor or felony offense in Virginia, that criminal conviction can have consequences that last well beyond the completion of a sentence. Indeed, having a criminal record can make it difficult or even impossible for a person to be hired for particular jobs, to be able to rent certain homes or apartments, to be eligible to obtain credit and loans, and other benefits. A juvenile criminal record can be particularly devastating for a young adult who made a mistake as a minor. While record sealing and expungement may be an option for adults only in limited circumstances, it is especially important for juvenile offenders who want to be able to have a fresh start as an adult. At Leary Law, we know that people make mistakes and deserve a second chance. Young people in particular can turn their lives around after a criminal conviction, and record sealing or expungement can make that possible.

If you have a juvenile record, you may have heard about the possibility of juvenile record sealing or expungement. However, it can be difficult to understand whether there is a difference between these possibilities, and what steps you need to take in order to be eligible to have your criminal record sealed and expunged.

Is There a Difference Between Sealing and Expungement?

The terms “sealing” and “expungement” are used interchangeably in some states, while they mean different things in other states. When these terms are not used interchangeably, it is essential to understand the distinction—especially if your juvenile criminal record occurred in a state that distinguishes between sealing and expungement. Generally speaking, having a record sealed means that it is hidden or inaccessible without a court order. If you have a juvenile criminal record and it becomes sealed, it may still be accessible with a court order. In other words, the record is not destroyed. In general, then, having a record expunged means that it is destroyed and is inaccessible, even with a court order. While many states use these distinct definitions, Virginia law is a little bit different.

What about states where sealing and expungement are used interchangeably? When it comes to preventing the public from viewing criminal records, Virginia only has the option of expungement (Virginia Code § 16.1-306). While it does have statutory law (6VAC20-120-80) that refers to the expungement and sealing of criminal records, the language here refers to the process of an expunged record being sealed. To be clear, under Virginia law, expungement does not necessarily mean that records are destroyed. Instead, expungement in Virginia typically means that the records are sealed from public view. We will explain more below.

Difference Between Juvenile and Adult Criminal Records

In Virginia, although the state does not recognize the distinctions of record “sealing” and “expungement” as two distinct options for people with criminal records as some other states do, it is important to know that the state does draw a significant distinction between juvenile and adult offenders.

Some juvenile convictions can be automatically expunged and ultimately destroyed, while no adult convictions can be expunged without a pardon. To be clear, juvenile criminal records, including some convictions, are eligible for expungement. Differently, anyone convicted of an offense as an adult cannot have a criminal conviction expunged without a pardon from the governor. With adult criminal records, only certain arrests, charges, and other non-conviction records may be eligible for expungement.

Whereas juvenile criminal records that are automatically expunged means that the court records will be destroyed, the same is not true for an adult expungement. Adult expungements result in the record being sealed to the public.

Not All Juvenile Records Are Automatically Expunged

The first thing to know before you consider options for having your juvenile record sealed and expunged in Virginia is that this does not happen automatically in all circumstances. There is a general sense or idea in the U.S. that, upon reaching the age of majority, criminal records are destroyed, according to the National Conference of State Legislatures (NCSL). However, not all Virginia juvenile records are expunged.

When juvenile records in Virginia are automatically expunged, the statute makes clear that the records are destroyed. Indeed, the statute clarifies that the court will “destroy its files, papers and record, including electronic records, connected with any proceeding concerning a juvenile in such court.” Under Virginia law, juvenile records will be automatically expunged when the person turns 19 years old if the following are true:

• It has been five years since the date of the last hearing (in other words, the offense was committed when the juvenile was 14 years old or younger);
• The offense would not have been charged as a felony if it had been committed by an adult offender; and
• It is not a DMV record.

In Virginia, DMV records regarding juvenile offenses cannot be destroyed until the person turns 29 years old. And if the offense would have been a felony, or if the juvenile offender was convicted of a felony, the records are not automatically expunged. Indeed, according to Virginia law, in such cases, “the records shall be retained” and can be accessed publicly.

Expungement of Juvenile Felony Records?

What options does a juvenile offender have to get records expunged and sealed when the offense committed would have been a felony, or when the juvenile was over the age of 14? In short, there is no option for an automatic expungement. Rather, the person convicted of the offense can only have the criminal record expunged in the same way that an adult offender can—through a pardon.

Contact a Juvenile Law Attorney in Manassas, Virginia

If you need help with juvenile records and expungement, a Manassas juvenile law attorney can assist you. Contact Leary Law today.