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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

October 11, 2022 Opinion from the Court of Appeals

The Court of Appeals issued a single opinion on October 11, 2022, reversing and remanding in Alejandra Isabel Obregon v. Commonwealth of Virginia. Before you get all excited about the reversal in a criminal appeal . . . this isn't one. The style of the case is the same as the underlying criminal case at issue, but this is not an appeal of that judgment, but rather an appeal of the denial of a petition to have the record of that case expunged. Expungement is governed by Code § 19.2-392.2.

Obregon was charged with underage possession of alcohol in violation of Code § 4.1-305 and fraudulent use of another’s identification to obtain alcohol in violation of Code § 46.2-347.The Montgomery County General District Court dismissed both charges. In 2017, Obregon was arrested for leaving the scene of an accident resulting in property damage in violation of Code § 46.2-896. The Montgomery County General District Court subsequently dismissed the charge. She petitioned for thee record of these charges to be expunged, contending that they prejudiced her employability.

It would appear that these youthful indiscretions were not Obregon's brushes with the law, as she also had been charged in another jurisdiction with felony shoplifting, reduced to a misdemeanor, and a DUI charged that was nol prossed. When she applied to have the dismissed charges expunged in Montgomery County, the Commonwealth argued that these other charges and the one conviction meant that there would be no manifest injustice in not expunging the records. The court agreed, stating that Obregon had failed to prove that having the record of these charges remain would result in a manifest injustice.

Obregon filed a motion for reconsideration in which she argued that the trial court had incorrectly required Obregon to prove “actual” injustice, rather than a “reasonable possibility” of manifest injustice. The Commonwealth responded that Obregon had in the interim been charged with a new offense for domestic assault, also nolle prossed, and that this offense would remain on her record, thus showing no manifest injustice in not expunging the charges,

The issue on appeal was whether the circuit court applied the correct standard by requiring Obregon to prove a manifest injustice would result if the expungement were not granted. (Helpful hint: If you have ever wondered about the correct tense to use when using "if" checkout this handy guide from the Writing Center at UNC Chapel Hill.) The Court of Appeals holds that this is no the correct standard because the statute requires that the court find that the existence of the expungable record "causes or may cause circumstances which constitute a manifest justice." It's that may that takes the court's decision from the "actual" to the merely "probable." On that basis the Court remanded the case for a reconsideration under the correct standard.

I hope that Ms. Obregon has not managed to rack up any additional charges in the meantime, and even if she has not, I rather suspect that the circuit court may find that the shoplifting conviction, which is not expungable, moots her argument that there is even a probability of a manifest injustice in not expunging her other records. That decision, as the Court of Appeals pointed out in its opinion, would be reviewed for abuse of discretion.

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