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DUI cannot be expunged

Virginia Lawyers Weekly//September 11, 2023

DUI cannot be expunged

Virginia Lawyers Weekly//September 11, 2023//

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Where defendant was arrested for driving under the influence of alcohol, or DUI, and the charge was later amended to reckless driving, the court denies his motion to expunge the DUI.

“A separate and unrelated charge may be expunged[.]” Because the DUI and reckless driving charges in this case “share a common nucleus of operative facts,” the charges are not separate and unrelated. As a result, the DUI arrest cannot be expunged.

Legal standards

“The Supreme Court of Virginia issued two new opinions this year, both involving the expungement of charges that were later amended to other offenses, clarifying the law.

“In Forness v. Commonwealth, 882 S.E.2d 201 (Va. 2023), the high court held a court may not expunge a felony DUI charge that resulted in a misdemeanor DUI conviction. It reasoned that the felony and misdemeanor each involved the same offense but with different sentencing enhancements. …

“A few months later it issued Williams v. Commonwealth, 885 S.E.2d 457 (Va. 2023), which held that a court may not expunge an Accessory After the Fact-Homicide charge that resulted in a conviction of only the amended charge of Obstruction of Justice without conducting a two-pronged test it announced in its opinion. …

“Williams … defin[ed] … when an original charge is ‘separate and unrelated’ to the charge of conviction. …

“It … held that courts ‘should (1) compare the conceptual similarities and differences between the original charge and the amended charge and (2) examine whether the two charges share a common nucleus of operative facts.’ …

“To complete this test, the court ‘may consult the underlying records of the petitioner’s criminal cases, including any transcripts.’ … ‘However, the presentation of new evidence to prove the petitioner’s guilt or innocence is not permitted.’”


“In the present case, using the Williams test, the Court rules that it may not expunge W.H.D.’s DUI charge because he pled guilty to Reckless Driving and the sentence obviously reflected the original DUI allegations.

“The two charges are not completely separate and unrelated to one another. They each contain ‘conceptual similarities’ and ‘share a common nucleus of operative facts.’ …

“Per the logic of Williams, the fact that DUI and Reckless Driving do not share the same elements, and the fact that one could be convicted of DUI but not Reckless Driving, and vice versa, does not negate the hypothesis that the two are ‘conceptually similar.’”

“By rejecting Blockburger [v. United States, 284 U.S. 299, 304 (1932)] as the test to determine whether a charge has been ‘otherwise dismissed’ through an amendment to be eligible for expungement, the Court in Williams made the test of whether an original charge and an amended charge are conceptually similar a broader observation of the two offenses.

“The fact that the Commonwealth would have to prove different elements under each charge is no longer dispositive.

“In the present case, the Court concludes that DUI and Reckless Driving are conceptionally similar, chiefly because the General Assembly implicitly said so by barring conviction of both from the same acts. …

“However, the Court also reasonably envisions circumstances where a person is under the influence of alcohol and is also driving in an alcohol-fueled, reckless manner triggering criminal culpability for either DUI or Reckless Driving—or both—making them conceptually similar.

“The fact that the two offenses are not lesser included charges, and do not share the same elements, has little effect on the Court’s determination of whether they are conceptually similar, since the Williams Court rejected that test. …

“The Supreme Court defines the term ‘common nucleus of operative facts’ as two crimes originating from the same background facts. …

“The common nucleus of operative facts in the present case are: (1) W.H.D.’s reckless driving, as proven by his plea to and conviction of Reckless Driving; (2) the probable cause determination that alcohol was involved; and (3) W.H.D.’s acceptance of a plea agreement requiring both the VASAP [Virginia Alcohol Safety Action Program] and the interlock ignition device.

“W.H.D. drove ‘recklessly’ or ‘in a manner so as to endanger the life, limb, or property of any person’ with significant connection to alcohol to justify a magistrate’s DUI probable cause finding confirmed by W.H.D.’s sentence than includes alcohol-related punishments—VASAP and ignition interlock.

“All of this is enough for the Court to find as fact that the DUI and Reckless Driving charges share a common nucleus of operative facts in the present case.”

W.H.D. has no right to expungement of his DUI arrest.

W.H.D. v. Commonwealth, CL-2022-9997, Aug. 15, 2023. In the Fairfax County Circuit Court (Oblon). B.R. Hicks for petitioner. Chaim Mandelbaum for respondent. VLW 023-8-055, 12 pp.

VLW 023-8-055

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