You did everything the court asked. The classes, the community service, every drug screen. A judge dismissed the charge and you walked out thinking it was behind you. Then a background check came back years later and there it was, still sitting on your record where any employer could see it.
That has been the reality in Virginia for decades. A dismissed first offender drug charge stayed publicly visible because Virginia’s expungement statute was never written to reach it. On July 1, 2026, Virginia’s record sealing law took effect. For the first time, the law reaches charges that were deferred and dismissed, and it reaches many convictions too. If you took a first offender disposition on a drug charge, you may have an option now that did not exist a few weeks ago.
Expungement and sealing are two different things
People use the word expungement for everything, and that causes real confusion. Under Virginia Code § 19.2-392.2, expungement is narrow. It reaches charges where you were acquitted, where the Commonwealth entered a nolle prosequi, where the charge was otherwise dismissed, where you received an absolute pardon, or where someone used your name when they were arrested. That is the list. We break that process down further in our guide to how to get a criminal record expunged in Virginia.
Here is why that has always been a problem for first offenders. To get a first offender disposition under § 18.2-251, you either plead guilty or the judge finds facts sufficient to justify a finding of guilt. The charge gets dismissed at the end, but you were never found innocent. Virginia courts have read § 19.2-392.2 to exclude that outcome, so the dismissal stayed on your record permanently.
Sealing works differently. Sealing does not erase anything. It moves the record out of public view so the general public, most employers, and most landlords cannot see it. Courts, law enforcement, and certain government agencies still can, in the situations the statute spells out. The sealing provisions live in Virginia Code § 19.2-392.5 and the sections that follow.
What a first offender disposition under § 18.2-251 actually required
If you went through the program, you already know it was not a free pass. Section 18.2-251 requires a substance abuse assessment, then treatment or education based on what that assessment recommends. During probation you have to stay drug and alcohol-free and submit to testing, make reasonable efforts to find and keep a job, and complete community service. That last piece is at least 100 hours for a felony and up to 24 hours for a misdemeanor.
Finish all of it and the court discharges you and dismisses the case. The statute says that discharge happens without an adjudication of guilt, and it counts as a conviction only for deciding whether you can use the first offender program again later.
Two things about § 18.2-251 have changed since most articles on this topic were written. The General Assembly amended the statute in 2024, and the automatic driver’s license forfeiture that used to come with a first offender disposition is no longer in the text. The statute now treats the disposition as a conviction only for purposes of § 22.1-315, which deals with school reporting. Second, the statute no longer covers marijuana because § 18.2-250.1 has been repealed. It now applies to possession of a controlled substance under § 18.2-250.
How the sealing law treats a first-time drug charge
The petition route for drug cases is Virginia Code § 19.2-392.12, and it says plainly that it covers a person who was convicted of, or had a charge deferred and dismissed for, a misdemeanor or a Class 5 or Class 6 felony. A first-offender drug dismissal fits that description.
Simple possession under § 18.2-250 lands inside those limits. Possession of a Schedule I or II substance is a Class 5 felony. Schedule III is a Class 1 misdemeanor, Schedule IV is a Class 2 misdemeanor, Schedule V is a Class 3 misdemeanor, and Schedule VI is a Class 4 misdemeanor. All of them are eligible on their face.
The court has to find that every one of these is true before it will sign a sealing order:
- The offense date was on or after January 1, 1986. Older cases cannot be sealed at all.
- You have stayed conviction-free for seven years after a misdemeanor or ten years after a felony, measured from the later of the dismissal, the conviction, or your release. Traffic infractions under Title 46.2 do not count against you.
- You have not been convicted of a Class 1 or Class 2 felony ever, no Class 3 or Class 4 felony in the past 20 years, and no other felony in the past 10 years.
- Because your case involved drugs, you have shown the court that you are rehabilitated. The statute singles this out for cases involving alcohol, narcotics, or other intoxicants, so expect it to matter.
- Any restitution the court ordered has been paid in full.
- Leaving the record public causes or may cause a manifest injustice to you.
A few limits are worth knowing before you get your hopes up. You only get two petitions under § 19.2-392.12 in your lifetime, so the order in which you file matters if you have more than one old charge. Possession of GHB under § 18.2-250 and anything involving flunitrazepam under § 18.2-251.2 are specifically excluded. So is a DUI conviction under § 18.2-266, which the statute lists as ineligible for sealing outright. On the other hand, there is no filing fee for a sealing petition.
What this looks like in a real Newport News case
Take a driver stopped on Jefferson Avenue in 2014 with a small amount of a Schedule II substance in the console. That is a Class 5 felony under § 18.2-250. She had no record, so her attorney worked out a first offender disposition. She completed the assessment, finished treatment, passed her screens, and did 100 hours of community service. In 2015 the court discharged her and dismissed the case.
For the next eleven years that dismissed felony charge showed up every time she applied for a job. She could not expunge it. Today she can file a petition to seal it because the offense date is after 1986, more than ten years have passed since the dismissal, and she has stayed conviction-free the entire time. She would file in Newport News Circuit Court and would put her rehabilitation in front of the judge: steady employment, treatment records, letters from people who know her.
This example is written to show how the statute works. It is not a case result, and every case turns on its own facts.
Where the petition gets filed in Hampton Roads
You file in the circuit court of the city or county where the case was disposed of. That trips people up, because most misdemeanor drug cases are handled in general district court. The sealing petition still goes to circuit court.
In Newport News, both courts sit in the same building at 2500 Washington Avenue. The General district court is on the second floor and circuit court is on the third. Our Newport News office is a few minutes from the courthouse. If your charge was resolved in Hampton, Virginia Beach, or the York County and Poquoson court in Yorktown, your petition belongs in that city or county’s circuit court instead.
Once you file, the Commonwealth is made a party. The Commonwealth’s Attorney gets a copy and has 30 days to object, answer, or state in writing that there is no objection. You also have to ask the Central Criminal Records Exchange to send your Virginia and national criminal history to the court. If the Commonwealth’s Attorney does not object and stipulates that you are eligible, the judge can sign the order without holding a hearing at all.
What sealing does for your job and your housing search
This is the part that matters most to people, and the statute is stronger than most expect. Once a charge is sealed, Virginia Code § 19.2-392.15 bars state and local government agencies, most private employers, educational institutions, landlords, and insurance companies from requiring you to disclose it. You can leave it off the application, and the application cannot be denied just because you refused to answer.
Background check companies have obligations too. Under § 19.2-392.16, a business screening service that knows a record has been sealed has to delete it. If it keeps selling the record anyway, you can recover $1,000 or your actual damages, whichever is greater, plus costs and attorney fees.
Now the limits, because they are real:
- Sealing does not restore your civil rights, and it does not restore your right to possess or carry a firearm. If you were convicted of a felony, that is a separate process.
- Police departments and sheriff’s offices can still see sealed records when they are hiring. So can employers where federal law requires the question and positions tied to national security clearance requirements. In a region built around Joint Base Langley-Eustis, Naval Weapons Station Yorktown, and NAS Oceana, that exception affects many people.
- A sealed charge is still disclosed in presentence reports and sentencing guidelines, and it can still be considered on bail.
- A sealed charge can still be used in a proceeding about the care and custody of a child, and you can be required to disclose it there. If you are heading into a child custody case, do not assume sealing takes it off the table.
If your drug case is still open, read this before you agree to anything
The first offender program is often the right call. Sometimes it is not, and by the time you find that out you cannot undo it.
Virginia Code § 19.2-298.02 lets a court take a charge under advisement and defer disposition with the agreement of the Commonwealth’s Attorney. A dismissal under that section is not a first offender disposition, which means it may be eligible for actual expungement rather than a sealing petition seven or ten years down the road. Whether a prosecutor will agree depends on the case and the jurisdiction, but it is worth asking before anyone assumes § 18.2-251 is the only path.
If you are not a United States citizen, this decision is even more serious. Federal immigration authorities treat a first offender disposition as a guilty plea, and a drug charge can affect your status regardless of what the Virginia court called the outcome. Talk to a criminal defense lawyer before you enter any plea.
Marijuana charges are handled separately
If your old charge was possession of marijuana under former § 18.2-250.1, you are not filing anything. Virginia Code § 19.2-392.6:1 seals those records without a court order, whatever the disposition was and whatever year it happened. The Central Criminal Records Exchange, the courts, law enforcement agencies, and DMV are all required to find and seal them.
That process runs on its own schedule, so if a marijuana charge is still showing up on a background check, it is worth confirming what the state police record actually says before you assume the system has caught up.
Talk to us about your record
If you are dealing with an old drug charge that will not go away, or you are facing a new possession charge and trying to decide what to do about it, the attorneys at Holcomb Law are ready to help. We handle criminal defense and record sealing matters across Newport News, Hampton, Virginia Beach, Yorktown, and Lynchburg, and we understand how much is at stake for you and your family. Call us at (757) 913-5204 or contact us online to schedule a consultation.
Frequently Asked Questions
My drug charge was dismissed years ago. Why does it still show up on background checks?
Because a dismissal and a clean record are not the same thing in Virginia. If your case ended with a first offender disposition under § 18.2-251, the charge and its outcome stayed in the public court record and in your criminal history. Virginia’s expungement statute never covered that situation. The sealing law that took effect on July 1, 2026, is the first mechanism that does.
How long do I have to wait before I can ask to have a first-time drug charge sealed?
Seven years if the charge was a misdemeanor, ten years if it was a felony. The clock runs from the later of your dismissal, your conviction, or your release from incarceration, and you have to stay conviction free that whole time. Traffic infractions under Title 46.2 do not reset it. Possession of a Schedule I or II substance is a Class 5 felony, so most first offender drug cases involving those substances fall under the ten-year rule.
Does sealing my record give my gun rights back?
No. Virginia Code § 19.2-392.5 says directly that a sealing order does not restore your civil rights or your right to possess, transport, or carry a firearm. Restoration of rights after a felony is a separate process that runs through the Governor’s office, and firearm rights require a petition to the circuit court under § 18.2-308.2. Sealing helps with employment and housing, not with a gun purchase.
Do I have to tell an employer or a landlord about a sealed drug charge?
In most situations, no. Once the charge is sealed, most private employers, landlords, insurers, and state and local agencies cannot require you to disclose it, and they cannot deny your application just because you declined to answer. There are exceptions you need to take seriously, including law enforcement jobs, positions where federal law requires the inquiry, and jobs tied to national security requirements. If a security clearance is part of your work, ask a lawyer how sealing interacts with your specific situation before you answer any form.
Can my ex bring up a sealed drug charge in a custody case?
Yes, and this catches people off guard. Virginia Code § 19.2-392.5 says a sealed charge may be admitted and considered in a proceeding relating to the care and custody of a child, and it says you can be required to disclose it in that proceeding. Failing to disclose it when you are required to can be prosecuted for perjury. If custody or visitation is on your horizon, plan on that charge being part of the conversation.
