SB 1402 — Criminal records; expungement and sealing of records.

The provisions of this chapter shall only apply to adults who were arrested, charged, or convicted of a criminal offense and to juveniles who were tried in circuit court pursuant to § 16.1-269.1.

C.

This subsection shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law or to affect any cause of action accruing prior to the effective date of this section.

of 10 D.

A person who is the subject of the order of sealing entered pursuant to § 19.2-392.7, 19.2-392.8, of 10 19.2-392.9, 19.2-392.11, or 19.2-392.12 may not deny or fail to disclose information to any employer or prospective employer about an offense that has been ordered to be sealed if:

An order to seal an arrest, charge, or conviction entered pursuant to § 19.2-392.7, 19.2-392.8,19.2-392.9,19.2-392.8, 19.2-392.9, 19.2-392.11, or 19.2-392.12 shall not relieve the person who was arrested, charged, or convicted of any obligation to pay all fines, costs, forfeitures, penalties, or restitution in relation to the offense that was ordered to be sealed.

Subject to the provisions of subsection D, any offense listed under subsection A and C, any conviction listed under subsection B A shall be ordered to be automatically sealed if seven years have passed since the date of the dismissal or conviction and the person charged with or convicted of such offense 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 of 10 Columbia, or the United States or any territory thereof, excluding traffic infractions under Title 46.2, during that time period.

E D.

No conviction listed under subsection B A shall be automatically sealed iR,if, on the date of the conviction, the person was convicted of another offense that is not eligible for automatic seaD.sealing under subsection A or B.

D.

This section shall not be construed as prohibiting a person from seeking sealing in the circuit of 10 court pursuant to the provisions of § 19.2-392.12.

E § 19.2-392.7.

D A.

On Except as provided in subsection A1, on at least a monthly basis, the Department of State Police shall determine which offenses in the Central Criminal Records Exchange meet the criteria for autA1.automatic sealing set forth in subsections A, B, and C of § 19.2-392.6.

A1.

After reviewing the offenses under subsection subsections A and A1, the Department of StaSeState Police shall provide an electronic list of all offenses that meet the criteria for automatic se1lingsealing set forth in § 19.2-392.6 to the Executive Secretary of the Supreme Court and to any circuit court clerk 0howho maintains a case management system that interfaces with the Department of State Police under E subsection B1 of § 17.1-502.

R C.

Upon receipt of the electronic list from the Department of State Police provided under subsection B, on at least a monthly basis the Executive Secretary of the Supreme Court shall provide an electronic list of all offenses that meet the criteria for automatic sealing set forth in § 19.2-392.6 to the clerk of each circuit court in the jurisdiction where the case was finalized, if such circuit court clerk participates in the case management system maintained by the Executive Secretary.

The clerk of each circuit court shall provide an electronic copy notification of any order entered orderunder electronicsubsection notification,D to the Department of State Police shallon proceedat asleast seta forthmonthly inbasis. § 19.2-392.13.

Upon receipt of such order electronic notification, the Department of State Police shall proceed as set forth in § 19.2-392.13.

clerkA. who maintains a case management system that interfaces with the Department of State Policecourt under subsection B1 of § 17.1-502 shall provide an electronic list notification of all offenses in such case management system to the Department of State Police that were ordered to be automatically sealed pursuant to §§ § 19.2-392.8 and 19.2-392.9.

On at least a monthly basis, the Executive Secretary of the Supreme Court and any circuit court clerk who maintains a case management system that interfaces with the Department of State Police under subsection B1 of § 17.1-502 shall provide an electronic list notification of all offenses in such case management system to the Department of State Police that were ordered to be automatically sealed pursuant to §§ § 19.2-392.8 and 19.2-392.9.

On at least an annual basis, the Department of State Police shall review the Central Criminal Records Exchange and identify all persons with finalized misdemeanor case dispositions that resulted in (i) an acquittal, (ii) a nolle prosequi, or (iii) a dismissal, excluding any charge that was deferred and dismissed after a finding of facts sufficient to justify a finding of guilt, where the criminal history record of 10 of such person contains no convictions for any criminal offense for a violation of any law of the Commonwealth that requires a report to the Central Criminal Records Exchange under subsection A of § 19.2-390 and where such criminal history record contains no arrests or charges for a violation of any law of the Commonwealth that requires a report to the Central Criminal Records Exchange under subsection A of § 19.2-390 in the past three years, excluding traffic infractions under Title 46.2.

Upon receipt of the electronic list from the Department of State Police provided under subsection B, on at least an annual basis the Executive Secretary of the Supreme Court shall provide an electronic list of such offenses to the clerk of each circuit court in the jurisdiction where the case was finalized, if of 10 such circuit court clerk participates in the case management system maintained by the Executive Secretary.

A petition may request the sealing of the criminal history record information and of 10 court records for multiple charges or convictions 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 arEare eligible for sealing.

A petitioner may only have two petitions granted pursuant to this section within hRshis lifetime.

Any petition that is granted (i) solely to seal a violation of subsection A of § 18.2-265.3 as it relates to marijuana, (ii) solely to seal a violation of § 4.1-305, or (iii) to seal a violation of both subsection A of § 18.2-265.3 as it relates to marijuana and § 4.1-305 arising out of the same transaction or occurrence shall not count against the petitioner's lifetime maximum.

L D.

The attorney for the Commonwealth may file aEan objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is delivered to him or received in the mail.

D E.

Upon receipt of the petition, the circuit court shall order that the attorney for the Commonwealth or a law-enforcement officer, as defined in § 9.1-101, provide the court with a sealed copy of the petitioner shall request that the Central Criminal Records Exchange (CCRE) electronically forward aon C, the copy of the petitioner's Virginia criminal history record toof the circuitpetitioner. court in which the petition was filed.

In addition to the filing of the petition under subsection C, the of 10 petitioner shall request that the Central Criminal Records Exchange (CCRE) electronically forward a copy of the petitioner's Virginia criminal history record to the circuit court in which the petition was filed.

however, if the circuit court is unable to receive an electronic transmission, the CCRE Shallshall forward a copy of such record to the circuit court which shall be maintained under seal by the 1lerkclerk unless otherwise ordered by the court.

Upon completion of the hearing, the court shall cause th0the criminal history record to be destroyed unless, within 30 days of the date of the entry of the Einalfinal order in the matter, the petitioner or the attorney for the Commonwealth notes an appeal to the SupreReSupreme Court of Virginia.

After receiving the criminal history record of the petitioner, the court may conduct a hearing on information and court records, including electronic records, relating to the chargepetition. or conviction, only if the court finds that all criteria in subdivisions 1 through 4 are met, as follows:

The court shall enter an order requiring the sealing of the criminal history record information and court records, including electronic records, relating to the charge or conviction, only if the court finds that all criteria in subdivisions 1 through 4 are met, as follows:

or 2.b.

Ten years for any felony offense;

2.

writtenG. notice to the court pursuant to subsection D that he does not object to the petition and (ii)ives 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.

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.

Such electronic order 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 or conviction to be sealed, if available, and theiminalthe document control number, if available.

Upon receipt of such electronic order notification, the of 10 Department of State Police shall seal such records in accordance with § 19.2-392.13.

of 10 M.

(iv) to any full-time or part-time employee of the State Police or a police department or sheriff's office of 10 that is a part of or administered by the Commonwealth or any political subdivision thereof for the purpose of screening any person for full-time employment or part-time employment with, or to beEabe a volunteer with, the State Police or a police department or sheriff's office that is a part of or administered by the Commonwealth or any political subdivision thereof;

(v) to the State Health Commissioner or his designee for the purpose of screening any person who applies to be a volunteer with or an emploReeemployee of an emergency medical services agency as provided in § 32.1-111.5;

(vi) to any full-time or part-time employee of the Department of Forensic Science for the purpose of screening any person for full-time or part-time employment with the Department of Forensic Science;

(vii) to the chief law-enforcementtimelaw-enforcement or officer of a locality, or his designee who shall be an individual employed as a public safety official of the locality, that has adopted an ordinance in accordance with §§ 15.2-1503.1 and 19.2-389 for the purpose of screening any person who applies to be a volunteer with or an employee of an emergency medical services agency as provided in § 32.1-111.5;

(viii) to any full-time or part-time emploEeeemployee of the Department of Motor Vehicles, any employer as defined in § 46.2-341.4, or any medical examiner as defined in 49 C.F.R.

(x) to any employer or prospective employer or its designee where the position that a person is applying for, or where access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any contract with, or statute or regulation of, the United States or any Executive Order of the President;

(xi) toSanyto any person authorized to engage in the collection of court costs, fines, or restitution under subsection C1ofC of § 19.2-349 for purposes of collecting such court costs, fines, or restitution;

(xii) to adminis0eradminister and utilize of 10 the DNA Analysis and Data Bank set forth in Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18;

(Eiii)(xiii) to publish decisions of the Supreme Court, Court of Appeals, or any circuit court;

(xiv) to any fuRl-timefull-time or part-time employee of a court, the Office of the Executive Secretary, the Division of Legislative Services, or the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary for the purpose of screening any person for full-time or part-time employment as a clerk, magistrate, or judge with a court or the Office of the Executive Secretary;

(xix) to any party in a criminal or civil proceeding for use as authorized by law thein Departmentsuch ofproceeding; Social Services or any local department of social services for purposes of performing to any statutory duties as required under Title 63.2;

(xx) to any party for use in a protective order hearing as authorized by law;

(xxi) to the Department of Social Services or any local department of social services for purposes of performing any statutory duties as required under Title 63.2;

Upon request from any person to access a paper or a digital image of a court record, the clerk of determines that the court recordshall hasdetermine beenwhether sealed, such record shallis notopen be provided to thepublic requestorourtaccess withoutand aninspection. order from the court that entered the order to seal the court record.

If the clerk of court determines that the court record has been sealed, such record shall not be provided to the requestor without an order from the court that entered the order to seal the court record.

No access shall be provided to electronic records in an appellate court, circuit court, or district court case management system maintained by the Executive Secretary of the Supreme Court or in a case management system maintained by a clerk of the circuit court for any arrest, charge, or conviction that was ordered to be sealed pursuant to § 19.2-392.7, 19.2-392.8, 19.2-392.9, 19.2-392.11, or 19.2-392.12, except to the Virginia Criminal Sentencing Commission, the Virginia State Crime Commission, and the of 10 Joint Legislative Audit and Review Commission for its research purposes.

of 10 I.