Clearing Your Name: Criminal Identity Theft Expungement Process in Virginia

Finding out that a criminal used your identity during an arrest or a traffic stop is a nightmare. In Virginia, from the busy highways of Fairfax to the local roads of Richmond, criminals often give false names to law enforcement to avoid jail time. If that name happens to be yours, a false criminal record is instantly tied to your background. This can ruin your chances of passing employment background checks, securing housing, or keeping professional licenses.

Fortunately, Virginia law provides a specific legal pathway for victims of criminal identity theft to clear their names and destroy these false records. Because this process involves proving your actual innocence in court, it is highly recommended to seek professional legal help. You can explore our US Lawyer Directory to find a local criminal defense or expungement attorney in Virginia to guide you through the courts.

Expunging False Criminal Records in Virginia

Under Va. Code Ann. § 19.2-392.2(B), a person may file a petition for expungement if they are the victim of identity theft and their name was falsely used in a criminal proceeding. Unlike a standard expungement where someone was arrested but the charges were dropped, criminal identity theft means you were never the person arrested in the first place.

Clearing False DUIs

One of the most common forms of criminal identity theft occurs during DUI traffic stops. A relative or acquaintance who knows your personal details might verbally identify themselves as you when pulled over without a physical ID. If a DUI is falsely attached to your driving record, it can cause your auto insurance rates to skyrocket or result in a wrongful license suspension by the DMV. Expungement removes this entirely.

Resolving Out-of-State Warrants

Sometimes, identity theft victims only discover the fraud when they apply for a job or get pulled over for a routine traffic stop in their home state, only to find out they have an active warrant in Virginia. If a criminal used your name and then skipped court, a bench warrant was likely issued in your name. You must first have the warrant quashed and the charges dismissed by proving mistaken identity before you can petition for expungement.

Fixing Background Checks for Nurses and Teachers

Professionals who undergo strict background checks, such as nurses and teachers, cannot afford any criminal history. The Virginia Department of Health Professions and local school boards require flawless criminal records. If criminal identity theft under Va. Code Ann. § 18.2-186.3 has tainted your record, obtaining an official expungement order is the only way to ensure the false charges do not appear on your Live Scan fingerprint checks.

Step-by-Step Process in Virginia

Clearing a false criminal record requires strict adherence to Virginia's procedural rules. Here is how the process works in jurisdictions like Virginia Beach, Richmond, and Loudoun County.

Step 1: Obtain Fingerprints and Identity Verification

To prove you are not the person who was arrested, you must be fingerprinted. You will need to take a copy of your petition to a local law enforcement agency or the Virginia State Police, Richmond. They will take your fingerprints and compare them to the fingerprints taken at the time of the original arrest. This forensic mismatch is your strongest proof of innocence.

Step 2: File a Petition for Expungement

Under Va. Code Ann. § 19.2-392.2(B), your attorney will file a petition with the court disposing of the charge. For minor offenses, traffic stops, and false DUIs, this is typically the local General District Court, such as the Fairfax County General District Court, Fairfax. You will typically use Form DC-363, Virginia, District Court, Petition or Motion for Expungement.

Step 3: Serve the Commonwealth's Attorney

By law, a copy of your petition must be served to the Commonwealth's Attorney (the local prosecutor) for that county or city. The prosecutor has 21 days to file a response. In cases of clear identity theft with mismatched fingerprints, prosecutors often agree to the expungement without opposition.

Step 4: Attend the Expungement Hearing

Even if the prosecutor agrees, a judge must sign the final order. You and your attorney will attend a hearing where the judge will review the evidence of actual innocence. Precedents such as Brown v. Commonwealth, 278 Va. 92 (VA Supreme Court 2009) emphasize that expungements protect innocent people from the stigma of unjust criminal records. Once signed, the court orders the police and the Virginia State Police to destroy or seal the false records.

How Much Does it Cost in Virginia?

While victims shouldn't have to pay to clear their name, there are costs involved.

• Court Filing Fees: For victims of criminal identity theft filing under Va. Code Ann. § 19.2-392.2(B), filing is completely free ($0 filing fee), as Virginia law explicitly exempts victims from paying court fees or costs.
• Fingerprinting Fees: Local police departments usually charge between $10 and $25 for fingerprinting services related to expungements.
• Attorney Fees: Hiring a private lawyer to handle the expungement typically ranges from $1,000 to $2,500, depending on the complexity of proving the identity theft and whether the prosecutor objects.

How Long Does the Process Take?

The entire expungement process in Virginia usually takes between 3 to 6 months. Getting your fingerprints verified by the Virginia State Police and forwarded to the court takes a few weeks. The prosecutor has 21 days to respond, and scheduling the hearing can take an additional 30 to 60 days depending on the Circuit Court's docket size. Once the judge signs the order, it may take another 30 days for all state databases to completely erase the record.

Standard Expungement vs. Identity Theft Expungement

Frequently Asked Questions (FAQ)