Virginia Diversion Program

One of the daunting aspects of being charged with a crime in Virginia is the permanent nature of a conviction. People frequently call Virginia criminal lawyers seeking expungements for previous convictions. Sometimes these convictions can date back several years. In most cases, the attorney has to tell the client that they aren’t eligible for an expungmement. Unlike many other states, in Virginia an expungement is not a feasible option for the vast majority of people who are convicted. The unfortunate result is that for many people a conviction will remain on their criminal records for life.

However, individuals charged with shoplifting or other petit larceny offenses have an opportunity to avoid a lifetime record. By special agreement with the Commonwealth Attorney’s office Fairfax offers an opportunity to avoid a criminal record.

At the beginning of each morning the judge handling all misdemeanor petit larceny cases asks all eligible parties if they are interested in interviewing for the diversion program. The phrase interview is inaccurate. It is more of an information session where the program director informs potential participants of the program’s terms. Typically the program requires a class and completion of about 25 hours of community service. Additionally the defendant is required to stay out of trouble for some period of time, usually six months. Often if it is a shoplifting case they are also ordered to refrain from going back in to the store where they stole. At the conclusion of the set time period the case will be dismissed if the individual has complied with all applicable terms. To be eligible for the program the defendant needs to have no prior record for theft.

Successful completion of the diversion program can be a blessing for many people. Initially the court will find that there is sufficient evidence to prove the person’s guilt but the judge will withhold a finding until the completion of the diversion period. This means that a person who has a matter dismissed after completing the program has never been found guilty. This is of tremendous benefit to anyone applying for a job, loan, or college admission. If an application asks if you have ever been convicted of a crime, a person who completes the program can answer “no”. Being able to answer “no” to a prior conviction can mean the difference between a successful application and a rejected one for a great deal of people.

The diversion program available for shoplifting/petit larceny cases in Fairfax is a great result for many people. However there are significant drawbacks.

1)     Not  Expungable        

An expungement is a complete removal of any indication a person was ever charged. The arrest, police record, and all court records are destroyed as part of an expungement. A person who completes a diversion program is not eligible for an expungement. This means that a review of the court, police, and/or criminal records will reveal the arrest. It will also show that the matter was later dismissed, but the existence of an arrest may require a person to answer some uncomfortable questions about their criminal history. Essentially completion of the diversion program is a great way to avoid a conviction but it doesn’t eliminate the record completely.


Before agreeing to participate you must come to the honest assessment of your ability to complete the program. You will be required to pay court costs, complete classes, and serve community service. The required amount for community service is typically about 25 hours. This will all have to be done in about a six month period. Starting and failing to complete the program can have potentially worse consequences than never starting at all. If you are going to have difficulty completing the program, it may be better to avoid it all together


Diversion is only available to individuals who have never been convicted of theft and who have never participated in the diversion program. It’s like a get out of jail free card that can only be used once.

If you are facing shoplifting/petit larceny charges in Fairfax the diversion program may be an excellent option. However, if you are not guilty or have other legal defenses the program can be a far too severe punishment.

Whether participation is a wise decision depends entirely on the facts of your case and your ability to complete the program. This is why it is important to talk to an attorney before you go to court. At the Law Office of Faraji Rosenthall we always offer honest, free consultations regarding all Fairfax shoplifting cases.