A. Except as provided in subsection L, a person who has been convicted of or had a charge deferred and dismissed for a (i) misdemeanor, (ii) Class 5 or 6 felony, or (iii) violation of § 18.2-95 or any other felony offense in which the defendant is deemed guilty of larceny and punished as provided in § 18.2-95, where the offense date for such misdemeanor or felony was on or after January 1, 1986, may file a petition setting forth the relevant facts and requesting sealing of the criminal history record information and court records related to the charge or conviction. In addition to requesting the sealing of a charge or conviction, such petition may also request the sealing of any specifically identified ancillary matter related to such charge or conviction.
B. A person shall not be required to pay any court fees or costs for filing a petition pursuant to this section.
C. The petition with a copy of the warrant, summons, or indictment, if reasonably available, shall be filed in the circuit court of the county or city in which the case was disposed of and shall contain, except when not reasonably available, the date of arrest, the name of the arresting agency, the date of conviction or deferred dismissal, and the case number associated with each court record that is the subject of the petition. When this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the charge or conviction and any ancillary matters to be sealed; the date of final disposition of the charge or conviction and any ancillary matters as set forth in the petition; the petitioner’s date of birth, sex, race, and social security number, if available; and the full name used by the petitioner at the time of arrest or summons. A petition may request the sealing of the criminal history record information and court records for multiple charges or convictions and ancillary matters as set forth in subsection A provided that all such charges and convictions arose out of the same transaction or occurrence and all such charges and convictions are eligible for sealing. A petition may not request the sealing of the criminal history record information and court records for multiple charges or convictions that arose out of different transactions or occurrences, except that ancillary matters shall not be treated as separate transactions or occurrences. A petitioner may only have two petitions granted pursuant to this section within his lifetime.
D. The Commonwealth shall be made party to the proceeding. The petitioner shall provide a copy of the petition by delivery or by first-class mail, postage prepaid, to the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 30 days after it is delivered to him or received in the mail.
E. In addition to the filing of the petition under subsection C, the petitioner shall request that the Central Criminal Records Exchange (CCRE) electronically forward a copy of the petitioner’s Virginia and national criminal history record to the circuit court in which the petition was filed. Upon receiving such request, the CCRE shall electronically forward such record to the circuit court; however, if the circuit court is unable to receive an electronic transmission, the CCRE shall forward a copy of such record to the circuit court which shall be maintained under seal by the clerk unless otherwise ordered by the court. Upon completion of the hearing, the court shall cause the criminal history record to be destroyed unless, within 30 days of the date of the entry of the final order in the matter, the petitioner or the attorney for the Commonwealth notes an appeal as provided by law in civil cases.
F. After receiving the criminal history record of the petitioner, the court may conduct a hearing on the petition. The court shall enter an order requiring the sealing of the criminal history record information and court records, including electronic records, related to the charge or conviction, only if the court finds that all criteria in subdivisions 1 through 6 are met, as follows:
1. The petitioner has (i) never been convicted of a Class 1 or 2 felony or any other felony punishable by imprisonment for life, (ii) not been convicted of a Class 3 or 4 felony within the past 20 years, and (iii) not been convicted of any other felony within the past 10 years from the date the petition was filed.
2. During a period after the date of (i) dismissal of a deferred charge, (ii) conviction, (iii) release from incarceration on the charge or conviction set forth in the petition, (iv) a finding that the person was in violation of a suspended sentence, probation, or parole related to the charge or conviction set forth in the petition, or (v) release from incarceration following a finding that the person was in violation of a suspended sentence, probation, or parole related to the charge or conviction set forth in the petition, whichever date occurred later, the petitioner has not been convicted of violating any law of the Commonwealth that requires a report to the Central Criminal Records Exchange under subsection A of § 19.2-390 or any other state, the District of Columbia, or the United States or any territory thereof, excluding traffic infractions under Title 46.2, for: a. Seven years for any misdemeanor offense; or b. Ten years for any felony offense;
3. If the records relating to the offense indicate that the occurrence leading to the deferral or conviction involved the use or dependence upon alcohol or any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, the petitioner has demonstrated his rehabilitation;
4. If the petitioner was ordered by a court to pay restitution as a condition of any charge, conviction, or ancillary matter that is the subject of the petition, such restitution has been paid in full;
5. The petitioner has not previously obtained the sealing of two other deferrals or convictions arising out of different sentencing events under this section; and
6. The continued existence and possible dissemination of information relating to the charge or conviction of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner.
G. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court pursuant to subsection D that he does not object to the petition and (ii) stipulates in such written notice that the petitioner is eligible to have such offense sealed, and the continued existence and possible dissemination of information relating to the charge or conviction of the petitioner causes or may cause circumstances that constitute a manifest injustice to the petitioner, the court may enter an order of sealing without conducting a hearing.
H. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
I. Upon the entry of an order of sealing, the clerk of the court shall maintain a copy of such order under seal and shall cause an electronic notification of such order to be forwarded to the Department of State Police. Such electronic notification shall contain the petitioner’s full name, date of birth, sex, race, and social security number, if available, and the full name used by the petitioner at the time of arrest or summons, as well as the petitioner’s state identification number from the criminal history record, the court case number of the charge, conviction, or ancillary matter to be sealed, if available, and the document control number, if available. The Department of State Police shall validate the accuracy of any criminal history record ordered to be sealed pursuant to this section but shall not validate whether such record is eligible for sealing. Upon receipt of such electronic notification, the Department of State Police shall seal such records in accordance with § 19.2-392.13. When sealing such charge, conviction, or ancillary matter, the Department of State Police shall include a notation on the criminal history record that such offense was sealed pursuant to this section. The Department of State Police shall also electronically notify the Office of the Executive Secretary of the Supreme Court and any other agencies and individuals known to maintain or to have obtained such a record that such record has been ordered to be sealed and may only be disseminated in accordance with § 19.2-392.13 and pursuant to the rules and regulations adopted pursuant to § 9.1-128 and the procedures adopted pursuant to § 9.1-134.
J. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order for the sealing of records contrary to law shall be voidable upon motion and notice made within two years of the entry of such order.
K. A petition filed under this section and any responsive pleadings filed by the attorney for the Commonwealth shall be maintained under seal by the clerk unless otherwise ordered by the court. Any order to seal issued pursuant to this section shall be sealed and may only be disseminated for the purposes set forth in § 19.2-392.13 and pursuant to rules and regulations adopted pursuant to § 9.1-128 and procedures adopted pursuant to § 9.1-134.
L. The following offenses are ineligible for sealing under this section:
1. §§ 4.1-309.1, 5.1-13, 18.2-36, 18.2-36.1, 18.2-36.2, and 18.2-47; subsection A of § 18.2-49.1; § 18.2-51.5; subsection C of § 18.2-57; §§ 18.2-57.2, 18.2-57.3, 18.2-59.1, 18.2-60, 18.2-60.3, 18.2-60.5, 18.2-130, 18.2-130.1, 18.2-144, 18.2-144.1, 18.2-154, 18.2-178.1, 18.2-266, 18.2-266.1, 18.2-268.3, 18.2-282.1, and 18.2-324.2; former subsection B of 18.2-346; and §§ 18.2-405, 18.2-406, 18.2-472.1, 19.2-62, 29.1-738, 29.1-738.02, 29.1-738.2, 37.2-912, 40.1-100.2, 40.1-103, 46.2-341.24, and 46.2-341.26:3;
2. Any violation of any offense under § 9.1-902 for which registration with the Sex Offender and Crimes Against Minors Registry is required;
3. Any violation of any violent felony offense listed under subsection C of § 17.1-805;
4. Any violation of any felony offense not listed as a violent felony under subsection C of § 17.1-805 where the person utilized a firearm, as defined in § 18.2-308.2:2, as part of the transaction or occurrence in the underlying offense to be sealed, unless such person’s right to possess, transport, or carry a firearm, ammunition for a firearm, or a stun weapon has been restored pursuant to § 18.2-308.2;
5. Any violation of an emergency, preliminary, or permanent protective order issued pursuant to Article 4 (§ 16.1-246 et seq.) of Chapter 11 of Title 16.1 or Chapter 9.1 (§ 19.2-152.7:1 et seq.) or any family abuse protective order issued pursuant to Article 9 (§ 16.1-278 et seq.) of Chapter 11 of Title 16.1;
6. Any violation of any hate crime as defined in § 52-8.5;
7. Any violation of Article 9 (§ 3.2-6570 et seq.) of Chapter 65 of Title 3.2;
8. Any violation of Title 24.2 (§ 24.2-100 et seq.);
9. Any violation involving the possession and distribution of flunitrazepam pursuant to § 18.2-251.2 or the possession of Gamma hydroxybutyric acid (some other names include GHB; gamma hydroxybutyrate; 4-hydroxybutyrate; 4-hydroxybutanoic acid; sodium oxybate; sodium oxybutyrate) pursuant to § 18.2-250;
10. Any violation where a person was found not guilty by reason of insanity;
11. Any conspiracy, attempt, or solicitation, and any principal in the second degree, accessory before the fact, or accessory after the fact, or any similar ordinance of any county, city, or town, for any offense deemed ineligible under this subsection;
12. Any conspiracy, attempt, or solicitation, and any principal in the second degree, accessory before the fact, or accessory after the fact where the completed substantive offense would be punishable as a Class 1, 2, 3, or 4 felony or by a term of imprisonment of more than 10 years, with the exception of a violation of § 18.2-95 or any other felony offense in which the defendant is deemed guilty of larceny and punished as provided in § 18.2-95;
13. Any violation of any offense where the person was prohibited by the court from possessing or owning a companion animal as a result of the transaction or occurrence in the underlying offense to be sealed, while such prohibition remains in effect;
14. Any violation of Article 6 (§ 3.2-6537 et seq.) of Chapter 65 of Title 3.2 that involved a dangerous or vicious dog as a part of the transaction or occurrence in the underlying offense to be sealed, while the person continues to own or possess such dog;
15. Any violation of Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
16. Any violation of Article 3 (§ 18.2-346 et seq.) of Chapter 8 of Title 18.2, with the exception of § 18.2-346, former subsection A of § 18.2-346, and § 18.2-347;
17. Any violation of Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2, with the exception of §§ 18.2-365, 18.2-371.2, 18.2-371.3, and 18.2-371.4;
18. Any violation of Article 5 (§ 18.2-372 et seq.) of Chapter 8 of Title 18.2, with the exception of § 18.2-388; and
19. Any offense where the victim of the crime to be sealed was a family or household member, as defined in § 16.1-228, of the person.
M. Nothing in this chapter shall prohibit the circuit court from entering an order to seal a charge, conviction, or ancillary matter under this section when such charge, conviction, or ancillary matter is eligible for sealing under some other section of this chapter.