SD8 - Juvenile Records - Confidentiality and Expungement (SJR 24, 2014)

Executive Summary:
*The Executive Summary and the printed report were replaced in their entirety by the Virginia State Crime Commission on July 16, 2015.

Senate Joint Resolution 24 was introduced during the 2014 General Assembly Session by Senator Barbara Favola. The resolution directs focus upon the confidentiality and expungement of juvenile records. The resolution specifically directed the Crime Commission to:

(i) Review all laws related to confidentiality and retention of juvenile court records;
(ii) Report on at what time and by whom juvenile record information can be accessed;
(iii) Determine whether existing confidentiality and destruction of records laws are being complied with;
(iv) Examine the impact on youthful offenders of having a juvenile record; and,
(v) Make recommendations regarding improvements in the laws that would assist juvenile offenders while allowing law enforcement to maintain the safety of the citizens of the Commonwealth.

Under Virginia law, juvenile records are to remain confidential; however, there are exceptions to this general rule. The Virginia State Police, the Department of Juvenile Justice, the courts, and the Department Motor Vehicles are all statutorily permitted to share juvenile records, under limited circumstances, to assist with handling of juvenile cases and for public safety purposes. The records of juveniles who are tried as adults, or juveniles who are 14 or older and found delinquent on the basis of an act which would be a felony if committed by an adult, are open and are not treated as confidential.

In terms of expungement, juveniles who are adjudicated delinquent of misdemeanors or status offenses have their records automatically expunged by age 19, or at age 29 for some offenses that are required to be a part of a Department of Motor Vehicles record. However, juveniles who are found delinquent of an offense that would otherwise be a felony if committed by an adult, or who are tried as an adult, do not have their records expunged. They may only obtain expungement if they are found not guilty or the charge is not prosecuted. Juveniles whose delinquency cases qualify for automatic expungement are not required to answer in the affirmative on applications about criminal history if asked if they have “ever been convicted of a crime.” Even those juveniles who do not receive an automatic expungement and whose records are open, may still answer that they have not been convicted of a crime. This is because, under the wording of Virginia’s statutes, they have not been “found guilty;” rather, they were “adjudicated delinquent of an offense that would be a felony if committed by an adult.” However, their record is still open for public inspection and the general public may not recognize the distinction between “guilty” and “adjudicated delinquent.” A juvenile tried as an adult would have to answer in the affirmative if they are asked about a conviction on an application because those juveniles have actually been found “guilty.”

A conviction for a crime carries numerous collateral effects that may last indefinitely. For felony convictions and felony delinquencies, these collateral effects may include the loss of civil rights, limited employment, difficulties in obtaining insurance, staying in school and obtaining a secondary education, loss/denial of public benefits, and the possibility of not being able to serve in the military.

Based on a 2011 Crime Commission review of possible improper disclosure of juvenile records, it was discovered that the Department of Motor Vehicles had mistakenly disclosed offense information on some juvenile driving records. The Department of Motor Vehicles made these disclosures based on abstracts that had not been redacted when sent to them, or abstracts that were erroneously sent by the courts. (*2) This mistake was corrected; however, it is unclear under current statutes as to what extent the Department of Motor Vehicles has the authority to include any information about offense specifics on a juvenile’s driving record.

The Crime Commission reviewed study findings at its September and December meetings and presented two policy options:

Policy Option 1: Amend Va. Code § 46.2-383 to make it clear that DMV can include offense specifics that relate to the operation of a motor vehicle on a juvenile’s driving record, but not for any other type of crime for which a juvenile is adjudicated delinquent.

Policy Option 2: Should the courts be required to record and report the number of cases expunged annually?

The Crime Commission unanimously endorsed Policy Option 1. No motion was made on Policy Option 2.

Delegate Jennifer McClellan introduced House Bill 1957 during the 2015 Regular Session of the Virginia General Assembly to make clear the information that DMV can provide on a juvenile driving record. After passing both the House of Delegates and the Senate, this bill was signed into law by the Governor on March 23, 2015.
(*2) These are abstracts that contain the main details of a criminal case: the name of the defendant, the court, the offense charged, the date of the adjudication, etc. They are forwarded to the Department of Motor Vehicles.