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S. Huband, Esq.
S. Huband, Esq., Attorney
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Experience:  Experienced and knowledgeable criminal defense attorney.
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As a minor, I was arrested and charged with domestic assault

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As a minor, I was arrested and charged with domestic assault in Virginia. My record was expunged. (And if it hasn't been expunged yet, it will automatically be in January based on current Virginia guidelines.) I now live in Texas, and would like to have my name changed. The petition asks for any misdemeanor charges above Class C. Am I allowed to leave this section blank due to the expungement?
Submitted: 8 months ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 8 months ago.
Thank you for the opportunity to assist you.

Q) Am I allowed to leave this section blank due to the expungement?

As usual when dealing with legal issues, the answer is "it depends." The exact answer depends on your age.

A Class C misdemeanor in Texas is punishable by a maximum fine of $500.00. Class B misdemeanors and above carry possible jail time. It sounds like what the Texas name change form wants to know is whether you have ever been convicted of a misdemeanor crime punishable by jail time.

Domestic assault is punishable by jail time in Virginia. To be clear, I'm assuming you were convicted under Virginia Code 18.2-57.2. That's the standard code section which applies to misdemeanor domestic assault. If that's wrong, please let me know.

Thus, the question is when or if your conviction has been expunged in Virginia. Virginia Code 16.1-306 makes it clear that a juvenile's misdemeanor record is automatically expunged on January 2 of the year following the juvenile's 19th. BUT, those records are only destroyed if there have been at least FIVE YEARS since the last hearing on the case. That means that a person could be as "old" as 23 years of age, depending on when his birthday occurs, before he is eligible for automatic expungement.

So, while the process of juvenile expungement is "automatic", it does not work as most people would think. (Or common sense would dictate.)

If you're 23 or older, you probably have had your file destroyed and your record expunged. If you're younger than 23, better safe than sorry; bite the bullet and list your Virginia conviction.

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Take care,
Shuband
Customer: replied 8 months ago.
After looking at a court document, I'm not so sure expungement played a role at all. Apparently I entered into a diversion program that "hold[s] juveniles accountable for their actions while at the same time providing them with the opportunity to maintain a clear record." This occurred at age 13. The name change petition specifically asks if I have been CHARGED with a class C misdemeanor. Even if there were no record of my arrest/charge, does that mean I could say no? They must have consciously chosen that word.
Expert:  S. Huband, Esq. replied 8 months ago.
Thanks for the update.

Q) Apparently I entered into a diversion program that "hold[s] juveniles accountable for their actions while at the same time providing them with the opportunity to maintain a clear record.

It sounds like that was what we often call an "advisement." The goal of juvenile justice is rehabilitation, not necessarily just punishment. So, it's certainly possible the charge was dismissed after a period of good behavior, or perhaps performing community service, etc. If so, there's nothing to expunge, in terms of a conviction.

Q) The name change petition specifically asks if I have been CHARGED with a class C misdemeanor. Even if there were no record of my arrest/charge, does that mean I could say no? They must have consciously chosen that word.

I agree, "charged" versus "convicted" is probably a conscious choice. Expungement generally removes a court record from public view, but not necessarily from law enforcement view. If the language says "charged," and you're not sure whether or not your expungement has been completed, I would err on the side of caution and say "yes." They will probably ask you to explain.

If you WERE in fact convicted, the charge should have been taken off your record by age 18 or 19, depending on when your 19th birthday fell. The records of your involvement with the court, of you being charged but having the charge dismissed, will eventually be destroyed following the same rules as expunged convictions for juveniles.

Virginia is a real stickler about expungement. I'm sorry this is so complicated. In the final analysis, it's better to be up front about things rather than have an arrest or conviction pop up and it looks like you were hiding something. Besides, I doubt your name change would be denied due to a juvenile misdemeanor finding of delinquency. (i.e. Being convicted.)

Take care,
Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 850
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 5 other Criminal Law Specialists are ready to help you
Expert:  S. Huband, Esq. replied 8 months ago.
Hello,

I was notified that you rated the answer I gave positively, and I am very pleased and gratified that I was able to help you. I sincerely XXXX XXX matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Thank you very much for the opportunity to assist you.

Take care,
Shuband

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