(Posted January 19, 2023) This morning brings the first decision of the year from the Supreme Court of Virginia. In Forness v. Commonwealth, the court addresses an expungement petition filed by a defendant who admittedly was accused of the wrong crime.

Forness was the involuntary recipient of a document entitled, “WARRANT OF ARREST – FELONY.” The charging language alleged that he “did unlawfully and feloniously in violation of Section 18.2-266 . . . drive or operate a motor vehicle while having a blood alcohol concentration of 0.08 percent or more by weight” and did so “after having committed one prior violation of § 18.2-266 or an offense set forth in subsection E of § 18.2-270 during a period of five to ten years from the date of the current offense and after having committed a previous violation of § 18.2-36.1, 18.2-36.2, 18.2-51.4, 18.2-51.5, or a felony violation of § 18.2-266.” The shortcut language for this is a felony charge of a second DUI after having previously been convicted of felony DUI.

Forness did indeed have a prior DUI conviction, but it wasn’t a felony. That led the local prosecutor to move the general district court to amend the charge to plain-vanilla DUI-second, which is a misdemeanor. The court granted that motion and then convicted Forness. An appeal to circuit got him nothing but another conviction. But that isn’t the heart of our tale.

Forness filed a petition to expunge records of the mistaken felony arrest. He pointed out that he works in the jewelry industry, and having a record that indicates falsely that he has a felony conviction can impair his ability to get work; he also might face an incorrect charge of carrying a firearm by a convicted felon. The arrest record is in state and national criminal databases, so this mistake will follow him everywhere.

At a hearing on the expungement petition, the circuit court ruled that he hadn’t established the required manifest injustice to justify judicial intervention. The court reasoned that Forness’s fears about employment opportunities were speculative.

Forness got a writ, and today a divided Supreme Court affirms the denial of expungement. Justice Powell writes the opinion of the court, and her reasoning is simple; indeed, the majority opinion is just 4½ pages. Applying the right-for-a-different-reason approach, the justices hold that Forness can’t establish that the original charge resulted in an acquittal or nolle prosequi, “or [was] otherwise dismissed.”

Citing a 2011 decision involving a conviction of a lesser included offense, the court reasons that the amendment of the original felony charge down to a misdemeanor won’t satisfy the threshold criterion for expungement relief. Justice Powell notes that there’s only one primary-offense DUI statute; the felony/misdemeanor distinction only appears in a separate statute that sets out the penalties for a conviction. Because the underlying charge didn’t change, the court concludes that it wasn’t “otherwise dismissed,” so Forness isn’t entitled to relief.

For the first time in over four months, we have a dissenting opinion. Justice Mann finds it “confounding” that this case before the court. “After all, there is no dispute that Forness was charged with the wrong crime.”

In contrast to the short majority, the dissent is expansive – 12 pages in all. Justice Mann points out that the majority’s reliance on the lesser included offense precedent is ill-advised, because the prosecution has the burden to prove each element of the offense, including prior convictions, beyond a reasonable doubt.

The majority had held that the greater charge – the felony prosecution – subsumed within it the lesser charge of second-offense DUI. Justice Mann’s rejoinder seems to make a solid point: A fictitious prior felony conviction is something entirely different from the prior misdemeanor conviction that the prosecution had to establish in the amended charge. He adds,

The majority’s line of reasoning implies that a DWI is a DWI, no matter the aggravating facts. If that were the case, Code § 18.2-270 would not exist, the Commonwealth would never have amended Forness’ original charge, and this appeal would likely not be before us. After all, why would the Commonwealth need to amend the charge if Forness’ prior offense was not an element of the crime? Under the majority’s analysis, it could simply address the issue during the sentencing phase.

You know what? Good point! The majority opinion doesn’t touch it, so this objection to the affirmance goes unanswered. He also notes, persuasively, that if the prosecutor had taken another approach in the GDC – nolle prosequi followed by issuance of a new arrest warrant, or even trial followed by acquittal, there would be no doubt of Forness’s right to expungement relief.

Justice Mann goes on to address the manifest-injustice prong, the basis for the judgment below, even though the opinion of the court found it unnecessary to address that component of the case. The dissent concludes that Forness did make out a case of manifest injustice, so the case should be remanded.

I found myself nodding in agreement as I read through the dissent here. The expungement statute is remedial, and courts are supposed to construe remedial statutes liberally in furtherance of their purposes. I believe it’s more than merely plausible to view these facts as a form of dismissal of the original, mistaken felony charge. As I see it, the Supreme Court today interprets the requirement of “otherwise dismissed” quite narrowly, limiting the reach of this remedial act by the legislature. Forness now gets to live with this too-narrow reading for the rest of his life.