If my charge was taken under advisement, can I get it expunged?

You may be eligible for expungement. One of the grounds to expunge your criminal record is if the charge was “otherwise dismissed” after certain conditions were met.

Consider a common situation. A person is charged with a crime. The prosecutor continues the case, and then it is dismissed  upon successful completion of certain conditions. In other words, the charge is dismissed by the prosecutor upon good behavior for a period of time. This is called a “deferred dismissal.”

Is a charge that is taken under advisement “otherwise dismissed,” thus allowing you to get expungement?

This is a tricky question. It depends on the case. A “deferred dismissal” is not eligible for expungement if the court made a finding of facts sufficient for guilt. The Supreme Court of Virginia has held that a dismissal following satisfaction of the terms of that deferral render the case ′′otherwise dismissed′′ for purposes of expungement. See Commonwealth v. Jackson, 255 Va. 552 (1998).

However, you may be eligible for expungement if the case was merely continued on the court’s docket and later dismissed by the prosecutor. In that scenario, the court has made no finding of facts sufficient for guilt. Therefore, before you decide to apply for expungement, contact a lawyer to review your case.

You may be eligible for expungement depending on the underlying proceeding. It is recommended that you speak with a Virginia lawyer to find out if you qualify.