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Man’s record inaccurate, but no expungement

Virginia Lawyers Weekly//February 1, 2023

Man’s record inaccurate, but no expungement

Virginia Lawyers Weekly//February 1, 2023//

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Even though appellant’s record inaccurately reflected that he had been convicted of felony DWI, the prosecutor’s subsequent amendment of the arrest warrant to misdemeanor driving while intoxicated, second offense within 10 years, was not a dismissal of the felony charge.

As a result, the trial court correctly denied his petition to expunge the felony charge from his record.


“Forness argues that the circuit court erred in denying his expungement petition because his arrest record is indisputably inaccurate. According to Forness, the Commonwealth’s decision to amend the arrest warrant operates as a dismissal of the Felony DWI charge, thereby permitting expungement under the statute.

“He further claims that the inclusion of the Felony DWI language on his record results in a manifest injustice, as it implies not only that he was charged with a felony, but also that he had been previously convicted of a felony.

“In support of this claim, he points specifically to the ‘with a prior felony driving while intoxicated conviction’ language in the charge. …

“When considering a petition for expungement, the threshold determination ‘is whether the petitioner has a right to seek expungement … under an applicable provision of Code § 19.2-392(A).’ … By its plain language, Code § 19.2-392.2(A) permits expungement only when a person ‘[i]s acquitted, … [a] nolle prosequi is taken or the charge is otherwise dismissed.’

“Here, it is undisputed that Forness was not acquitted of the DWI after a prior felony conviction charge, nor was a nolle prosequi taken. Thus, the question before the Court is whether amending the Felony DWI charge to DWI Second equated to the Felony DWI charge being ‘otherwise dismissed.’ …

“In Necaise v. Commonwealth, 281 Va. 666, 669 (2011), we explained that a charge is not ‘otherwise dismissed’ when, for example, it is reduced to a lesser included offense. A crime is a lesser included offense of another crime when all of the elements of the lesser crime are subsumed by the greater crime. …

“Conversely, a charge is ‘otherwise dismissed’ when the original charge is amended to a ‘completely separate and unrelated charge.’ …

“Forness insists that the lack of any temporal element in the Felony DWI means that DWI Second cannot be a lesser included offense. Forness’ argument on this point conflates the offense with which he was charged, i.e., driving while intoxicated in violation of Code § 18.2-266, with the punishment that may be imposed for a conviction of that offense. …

“As every driving while intoxicated charge implicates the same underlying offense, a violation of Code § 18.2-266, it is clear that Felony DWI and DWI Second involve the same offense but with different sentencing enhancements. In other words, the difference between the two charges is one of degree and not of kind. …

“[T]he amendment to the arrest warrant related only to the sentencing enhancement sought to be imposed, not the underlying offense. Indeed, it cannot be disputed that the only offense that Forness was ever charged with was a violation of Code § 18.2-266.

“Given that the actual offense that Forness was charged with remained the same, it simply cannot be said that the amendment resulted in a completely separate and unrelated charge.

“Accordingly, the amendment did not render the Felony DWI charge ‘otherwise dismissed’ for the purposes of Code § 19.2-392.2. Therefore, the circuit court properly dismissed Forness’ expungement petition.”


Forness II v. Commonwealth, Record No. 210893; (Powell; Mann, dissenting) Jan. 19, 2023. From the Circuit Court of Arlington County (Fiore). Alan J. Cilman on brief, for appellant. No brief filed by appellee. Amicus Curiae: The Attorney General of Virginia (Jason S. Miyares, Attorney General; Andrew F. Ferguson, Solicitor General; Charles H. Slemp III, Chief Deputy Attorney General; Erika L. Maley, Principal Deputy Solicitor General; Lucas W.E. Croslow, Deputy Solicitor General; M. Jordan Minot. Assistant Solicitor General, on brief), in support of appellee. VLW 023-6-001, 17 pp.

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