Criminal Records, Expungement, & Marijuana

Starting July 1, 2020, possession of marijuana in Virginia will not be a crime. What does that mean if you have a prior charge or conviction of marijuana possession when it was a crime?

Generally under Virginia law, convictions or “first offender dismissals” can never be expunged from a criminal record. But the new marijuana decriminalization law changes that. Now, all records of prior charges, convictions, and dismissals of marijuana possession cases will be sealed. This means that those records will not be available for public inspection except in certain circumstances (for example, background checks for firearm purchases and applying for a certain government jobs).

This is similar to expungement but not the same. With expungement all police and court records are destroyed. Under the marijuana law, the records still exist but cannot be viewed by most people or agencies.

Furthermore, employers and schools cannot require disclosure of any marijuana possession charges, convictions or dismissals. This is a big step for Virginia that relieves people from “checking the box” on employment and school applications simply because of a prior marijuana possession.

Just like with expungement, however, if you are applying for security clearances or other government-related positions, this new law may not protect you. Also, this law does not protect you at all from answering questions on applications with the federal government.

The general law of expungement remains the same. In any case, including marijuana possession, where you were acquitted, a nolle prosequi was taken, or the charge was otherwise dismissed (excluding “first offender), you may petition the court for expungement of the police records and court records related to the case.

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