Will a Deferred Disposition Show Up on My Criminal Record? Can I Get a First Offender Charge Expunged?

A deferred disposition occurs when a judge enters a finding of guilt with the court but allows a person to complete certain requirements and comply with various terms and conditions in order to potentially have the charge dismissed. If the person is compliant with the court order, the charge will be dismissed. Otherwise, the person will have a criminal conviction on their record and be sentenced by the judge accordingly.

A deferred disposition is also sometimes called a finding under advisement. The judge makes a finding of guilt as a result of a person’s guilty plea or after a not guilty plea and trial but offers the person the opportunity to have the charge dismissed.

Common examples of deferred dispositions in Norfolk and the Hampton Roads area involve domestic assault, possession of marijuana, and possession of Schedule I/II substances.

For example, a college student found to be in possession of marijuana may be placed on supervised probation through Adult Community Supervision in Norfolk for six months and be ordered to complete 24 hours of community service in addition to a substance abuse assessment. At the end of the six-month period, if the student is compliant and does not receive any new criminal charges or convictions, the judge will dismiss the charge.

In addition, there is a formal first offender program from those convicted of being in possession of Schedule I/II drugs. In Norfolk, a person is typically placed on supervised probation through the local Department of Probation & Parole for one year to complete substance abuse treatment. They will be required to do 100 hours of community service and must be on uniform good behavior for an additional year where they will not be supervised by a probation officer. If at the end of the two-year period the person completes all of the requirements to the satisfaction of the court, then the judge will dismiss the charge and the person will avoid a felony conviction.

A first offender program is also in place for those convicted of domestic assault in Virginia.

Having the opportunity to have a charge dismissed after a finding of guilt is a great outcome for many clients.

However, for expungement purposes, a finding of guilt entered by the court makes a charge ineligible for expungement.

Under the statute, “One who is ‘guilty’ cannot occupy the status of ‘innocent’ so as to qualify for expungement.

In order to qualify for expungment, a person must be acquitted of the charge and found not guilty, the charge must be nolle prossed and withdrawn by the Commonwealth, the charge must be dismissed by the court, or the person seeking expungement must have received an absolute pardon from the governor.

The court hearing the expungement petitioner’s request will use the standard of “manifest injustice”. “If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records relating to the charge.”

Furthermore, “The General Assembly finds that arrest records can be a hindrance to an innocent citizen’s ability to obtain employment, an education and to obtain credit. This chapter is intended to protect innocent persons who are arrested from unwarranted damage which may occur as a result of being arrested.”

Examples of manifest injustice include a loss of employment or housing as a result of a background check, which reveals a criminal charge.

The expungement process can be somewhat complicated so you will be best served to be represented by experienced local trial counsel who can guide you through the process.