Unintended Consequences?

Posted on Posted in Criminal Defense, Expungements

If someone is arrested and the charges are eventually dropped by the court, that’s the end of it, right? More often than not, it’s only the beginning! The record of an arrest itself doesn’t automatically go away, and in fact, the repercussions can follow you around for a long, long time.

Recently we assisted a client in getting the record of his arrest for a misdemeanor possession charge expunged. Without going into the facts of the case, these charges were eventually nolle prossed in the General District Court. “Nolle Prosequi” is Latin for “We shall no longer prosecute”, and is essentially an official entry on the record that the Commonwealth does not wish to pursue a conviction against the defendant and that the case is being dropped. There was never a finding of guilt or innocence, evidence was never presented, and there was never any finding of “facts sufficient to convict”.

handcuffed hands

 

The court could decide to do this for any number of reasons. It could be that there was some flaw with evidence, or that facts came to light later that charges weren’t appropriate. Sometimes the court can even have the defendant go through some supervised probation and agree to later drop the charges if they keep their nose clean. For one or more of these reasons, our client had his charges dropped and walked out of the courtroom a free man. That’s the end of it, right?

Wrong! A year or so after the charge was dropped, our client applied for a good job and was hired, contingent on a background check. The young man was chosen above several other qualified candidates, went through several weeks of training, and was well on his way to a rewarding career. However, about six weeks into his new job, the results of the criminal background check came back. Although the young man had no convictions on his record, the record of his arrest for possession was still there in black and white. Even though the record showed that these charges had been dropped, his new employer had a corporate policy that such a blemish was an absolute bar to employment with the company. Security guards came over to him immediately, removed him from the job site, took his work I.D. and other materials, and escorted him out to the parking lot. Game over.

This young man was brought up on charges that the Judge and the Commonwealth decided should be dismissed, and they were. However, the record of his arrest still continued to cause him immediate harm. He would still be in the awkward position of discussing this embarrassing matter with a prospective employer on a job application or in an interview. While he is a young man trying to build a reputation in his chosen profession, there is now an entire company workforce whose lasting impression of him is when he was marched out of the building by security. Not a good start.

When the young man came to us to see if there was anything that could be done, we discussed Virginia Code § 19.2 – 392.2, which sets up circumstances where the record of an arrest can be expunged. As the misdemeanor charge had been nolle prossed, and the young man had no other criminal convictions, the statute says that not only does he qualify for the expungement, the Commonwealth can’t even contest the expungement request unless they can present good cause.

After a brief hearing on the matter in the Circuit Court, the judge granted the petition for expungement and ordered that the record of the arrest be destroyed. This means that the young man will never have to mention it again to anyone – which seems to me like what OUGHT to happen any time a charge is dropped.

For further viewing on the sort of unintended consequences that can follow an arrest, have a look at the following video, which discusses the case of a man in New York who brought up on flimsy charges that were eventually dismissed. However, he continued to suffer stigma and even the loss of his job as a teacher because of the arrest.

[youtube=http://www.youtube.com/watch?v=MEzZSDKOVM4&rel=0]

The makers of the above video certainly raise some legitimate policy questions about how minor possession violations are prosecuted in New York. The answers to those questions are determined by folks above our pay grade. However, the last we checked, possession of marijuana is still illegal in Virginia. Where we stand in the process is making sure defendants to these charges receive a strong, vigorous defense to the charges themselves, with an eye on how the process might affect them in other aspects of life. For us, a key part of our analysis is determining what constitutes a successful outcome for a client.

No matter what, if you are able to resolve a charge through a dismissal or nolle prossequi, you owe it to yourself to follow up and have the record expunged. Talk to us today about how that process would work.

-JB

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