Circuit Court limits scope of records expungement

A petitioner seeking expungement of police and court records stemming from an assault and battery charge cannot expunge records of a preliminary protective order entered against them, the Fairfax County Circuit Court held.

In making the decision, Judge Jonathan D. Frieden noted that under the relevant statute, Va. Code § 19.2-392.2, persons charged with a crime who are acquitted or whose charges are nolle prossed may seek expungement “of the police records and the court records relating to the charge.”

However, Frieden wrote that records of a preliminary protective order entered against the plaintiff were not related to the charge.

“Records of the preliminary protective order entered against Petitioner, sought and obtained in a civil proceeding by the complaining witness in the criminal case based upon allegations of Petitioner’s conduct, are not records ‘relating to’ the charge,” Frieden wrote. “They are, therefore, not eligible for expungement.”

Frieden did find that records of an emergency protective order did fall under the umbrella created by the expungement statute.

The opinion is T.F.B. v. Commonwealth (025-8-023).

Counsel for the parties in the case did not respond to requests for comment by deadline.

Nolle prosequi

The petitioner, who by court practice is identified solely by their initials in the opinion, was arrested for assault and battery of a family member and served an emergency protection order on that same day, at the request of a law enforcement officer.

Per the opinion, the ERO states “[a] warrant for a violation of [Va. Code] § 18.2-57.2 has been issued and there is probable danger of further acts of family abuse against the allegedly abused person” as the basis for the order’s entry.

The complaining witness in the case later sought a protective order against the petitioner in Fairfax County Juvenile and Domestic Relations District Court. Pursuant to that petition, the J&DR court issued a preliminary protective order against the petitioner. The PPO states that the court found that the complaining witness “is a family or household member” of the petitioner who “is, or has been, within a reasonable period of time, subjected to family abuse.”

The order further states that the PPO is warranted to protect the health and safety of the complaining witness and their household members.

The court later denied the “full” protective order at trial, with an appeal to the Fairfax County Circuit Court later nonsuited. The “full” order would have lasted up to two years.

The charge against the petitioner was nolle prossed before the petitioner could enter a plea.

Expungement

Following the nolle prosequi, the petitioner sought to expunge “all police and court records relating to the Charge,” which they asserted includes the ERO and PPO. Under Virginia’s expungement statute, a person whose charge sees a nolle prosequi taken can petition for expungement of “the police records and the court records relating to the charge.”

“The Petition requires the Court to determine, without the guidance of any applicable appellate decision, whether such records ‘relate to’ the Charge under the expungement statute,” Frieden wrote, referencing the ERO and PPO.

Citing precedent including Hunter v. Commonwealth, Frieden wrote that the circuit court’s role in the present case is to “interpret the statute as the General Assembly intended.”

Regarding Virginia’s expungement statute, Frieden wrote that the relevant phrase “relating to” could have two possible meanings.

“The first such meaning is ‘to be in a relationship to’ or ‘to be connected with (someone or something),’” Frieden wrote. “The second such meaning is ‘have reference to’… or ‘to be about (someone or something).”

The judge wrote that when the first meaning is applied, the expungement statute would provide for expungement of police or court records “bearing any connection or relationship to the subject charge.” This interpretation, the judge wrote, would require the expungement of both the PPO and ERO, as well as the petitions filed to obtain them.

The second meaning would provide for the expungement of police or court records “about the subject charge,” allowing records “bearing a connection or relationship to the charge but not about the charge” to survive expungement.

In this case, Frieden noted, the second interpretation of the statute “would not permit expungement of all the records Petitioner seeks to expunge in this case.”

Frieden, having found the expungement statute “to be ambiguous,” next turned to “sources outside the language of the statute” to aid in determining the legislative intent of the statute. The judge noted a “statement of policy” in the statute that states in relevant part that the Legislature “finds that arrest records can be a hinderance to a citizen’s ability to obtain employment and an education.”

The policy statement goes on to state that the statute “is intended to protect such persons from the unwarranted damage that may occur as a result of being arrested and convicted.”

“As applicable to Petitioner’s case, the General Assembly’s intent in enacting the expungement statute was to prevent public access to the ‘arrest records’ of an accused but legally innocent person to protect that person from the ‘unwarranted damage’ that may occur from the discovery that they were charged with a criminal offense,” Frieden wrote.

Thus, the judge concluded that the second possible interpretation of the term “relating to” was most applicable to the intent of the General Assembly, allowing expungement of records of a petitioner’s charge and arrest, records referring to the charge and arrest and “flowing directly therefrom.”

Frieden cited the 2024 Fairfax Circuit Court opinion in R.T. v. Commonwealth in support of this conclusion, where Judge David Oblon found that the expungement statute “permits the expungement only of such records flowing from the charge and arrest of the petitioner, not such records flowing from the factual circumstances or allegations that caused the petitioner to be charged.”

As it relates to the present case, Frieden found the ERO “must be expunged” as it was sought by a law enforcement officer and issued due to their arrest on the charge.

The PPO, however, was a different story.

“The PPO was sought and obtained due to allegations about Petitioner’s conduct, not the fact that he was arrested on the Charge,” Frieden wrote. “Though it appears that at least some of the conduct alleged as the basis for entering a protective order also led to the Charge, the PPO was not sought or obtained due to the fact that Petitioner was charged or arrested.”

As the PPO also does not reference the charge and arrest, Frieden concluded that that order was not eligible for expungement.

Legislative, judicial changes

The Fairfax court’s opinion in T.F.B. v. Commonwealth is the latest in a series of recent developments related to criminal record expungement in Virginia.

During the General Assembly’s session earlier this year, the chamber passed legislation allowing for more records to be sealed on the effective date, which Gov. Glenn Youngkin delayed to July 2026 via an amendment.

And later in the spring, a three-judge panel of the Court of Appeals of Virginia reversed a circuit court decision in Perkins v. Commonwealth, finding that the Virginia State Police lacked standing to vacate the expungement of a defendant’s criminal record.