Interviewer: Getting your case dismissed or expunged. How and why would that be possible?
Brian Geno: In Virginia law, there are two general kinds of expunctions. One of them is for juvenile cases. If it was a misdemeanor case and you can probably get your juvenile case expunged, even if there was a conviction, they let juveniles maintain a clean record. Also, a juvenile record that is a case that started in the juvenile court and they ended while the person was 18 or under, then those cases are all sealed, and there may not even be a need for an expunction, just because the case and the record are all sealed.
However, for adults, an expunction is only available if the person went to court and one, was acquitted, or number two, if the government dropped the case. It’s called no pros. It’s Latin for nolle prosequi, and that one means that the government didn’t prosecute. For those two, you’re allowed under Virginia law to get an expunction.
The Process of Probation
Interviewer: How does probation work? What are the circumstances that would warrant probation?
Brian Geno: Not every conviction requires probation, but when the court orders it – that is, they order you to do certain things and they need to monitor it – it’s typically through the probation office. If a person gets convicted of a DWI, and they have to do a program called the Alcohol Safety Action Program, that would be monitored by a division of probation called ASAP. If they were convicted of possession of marijuana, and during the six months after the possession of marijuana, the court wants to know if they have completed community service or they have paid their fines and costs, or have stayed out of trouble. That would all be monitored by probation. It’s the arm of the court – arm of the government – that monitors people who have been convicted of crimes.
Not every criminal conviction or traffic conviction ends with supervision by probation, because sometimes the judge gives the sentence and there’s nothing left to do, nothing left to monitor, and so that’s the end of it.
There is, under Virginia law, a form of probation called inactive probation, which happens when the only thing that a person must do is be of good behavior. That would be where the judge does not give them anything that needs to be monitored. All they have to do is just stay out of trouble for a year. The inactive probation, by statute, just means that probation could step in and do something if they chose, but that’s only if the court has given them a year to stay out of trouble or something that doesn’t require any supervision other than just do nothing and do it well. If the judge gives them that requirement – do nothing and do it well – then there would be no supervision. It’s called inactive probation, and that, by operation of law, is still probation.
The reason I say that is because probation, even inactive probation, can affect a person who’s trying to apply for immigration benefits, for example. The USCIS, the United States Citizenship and Immigration Services, will not allow a person to obtain an immigration benefit, like a visa, if they are on probation. It’s in the context of, for example, possession of marijuana case where a person is just waiting for one year to go by. Their immigration application comes up, and the immigration service says, “Sorry. You can’t be approved until that probation is over.” That person will either have to sit tight and wait, or their application will be denied because they didn’t qualify at the time that they went for their interview.