Section 70. Challenge

A. Individuals who desire to challenge their own criminal history record information must complete documentation provided by the criminal justice agency maintaining the record and forward it to the Central Criminal Records Exchange or the criminal justice agency maintaining the record. A duplicate copy of the form and the challenged record may be maintained by the individual initiating the challenge or review. The individual's record concerning arrests for felonies and Class 1 and 2 misdemeanors may be challenged at the Central Criminal Records Exchange of the Department of the State Police. For offenses not required to be reported to the Central Criminal Records Exchange, the challenge shall be made at the arresting law-enforcement agency or the criminal justice agency maintaining the records.

B. A challenge to a record maintained by the Central Criminal Records Exchange will be processed as follows:

1. Message flags. If the challenge is made of a record maintained by the Central Criminal Records Exchange, both the manual and the automated record shall be flagged with the message "CHALLENGED RECORD." A challenged record shall carry this message when disseminated while under challenge.

2. Review at exchange. The Central Criminal Records Exchange shall compare the information contained in the repository files as reviewed by the individual with the original arrest or disposition form. If no error is located, the Central Criminal Records Exchange (i) shall forward a copy of the challenge form, a copy of the Central Criminal Records Exchange record, and other relevant information to the criminal justice agency or agencies which the Central Criminal Records Exchange records indicate as having originated the information under challenge and (ii) shall request them to examine the relevant files to determine the validity of the challenge.

3. Examination. The criminal justice agency or agencies responsible for originating the challenged record shall conduct an examination of their source data, the contents of the challenge, and information supplied by the Central Criminal Records Exchange for any discrepancies or errors and shall advise the Central Criminal Records Exchange of the results of the examination.

4. Correction. If any modification of a Central Criminal Records Exchange record is required, the Central Criminal Records Exchange shall modify the record and shall then notify the criminal justice agency in which the record was originally reviewed of its action and supply it and other agencies involved in the review with a copy of the corrected record.

5. Notification by Central Criminal Records Exchange. The Central Criminal Records Exchange shall also provide notification of the correction to all recipients of the record within the last 24 months.

6. Notification by other criminal justice agencies. Criminal justice agencies that have disseminated an erroneous or incomplete record shall in turn notify agencies that have received the disseminated record or portion of the record in the last two years from the date of the Central Criminal Records Exchange modifications of the records. Notification shall consist of sending a copy of the original record and corrections made to the recipients of the erroneous record noted in the dissemination log for the two-year period prior to the date of correction by the Central Criminal Records Exchange. (See § 9.1-132 of the Code of Virginia.) The criminal justice agency in which the review and challenge occurred shall notify the individual or his attorney of the action of Central Criminal Records Exchange.

7. Appeal. The record subject or his attorney, upon being told of the results of his record review, shall also be informed of his right to review and appeal those results.

C. A challenge to a record maintained by a criminal justice agency other than the central Criminal Records Exchange will be processed as follows:

1. Message flags. If a challenge is made of a record maintained by a criminal justice agency, both the manual and the automated record shall be flagged with the message "CHALLENGED RECORD." A disseminated record shall contain this message while under challenge.

2. Examination and correction agency. If the challenged record pertains to the criminal justice agency's arrest information, the arresting agency shall examine the relevant files to determine the validity of the challenge. If the review demonstrates that modification is in order, the modification shall be completed and the erroneous information destroyed. If the challenged record pertains to the disposition information, the arresting agency shall compare contents of the challenge with information originally supplied by the clerk of the court.

3. Review by clerk of court. If no error is found in the criminal justice agency's records, the arresting agency shall forward the challenge to the clerk of the court who submitted the original disposition. The clerk of the court shall examine the court records pursuant to the challenge and shall, in turn, notify the arresting agency of its findings. The arresting agency shall then proceed as described in subdivision C 2 of this section.

4. Notification. The criminal justice agency in which the challenge occurred shall notify the individual or his attorney of the action taken and shall notify the Central Criminal Records Exchange and other criminal justice agencies receiving the erroneous information of the necessary corrections if required, as well as the noncriminal justice agencies to which it has distributed the information in the last 24 months, as noted in its dissemination log.

5. Correction. The Central Criminal Records Exchange will correct its records and notify agencies that received erroneous information within the past 24 months. The agencies will be requested to correct their files and to notify agencies that have the disseminated information, as provided in subdivision B 6 of this section.

6. Appeal. The record subject or his attorney, upon receiving the results of the record review, shall be informed of the right to review and appeal.

D. Administrative review of challenge results.

1. Review by criminal justice agency head. After the review and challenge, in accordance with this section, concerning a record either in the Central Criminal Records Exchange or another criminal justice agency, the individual or his attorney may within 30 days request in writing that the head of the criminal justice agency in which the challenge was made review the challenge if the individual is not satisfied with the results of the review and challenge.

2. Thirty-day review. The criminal justice agency head or his designated official shall review the challenge by reviewing the action taken by the agency, the Central Criminal Records Exchange, and other criminal justice agencies and shall notify the individual or his attorney in writing of the decision within 30 days of the receipt of the written request to review the challenge. The criminal justice agency head shall also notify the individual of the option to request an administrative appeal through the department within 30 days of the postmarked date of the notification of the decision. This notification of the appeal shall include the address of the Department of Criminal Justice Services.

3. Correction and notification. If required, correction and notification shall follow the procedures outlined in subsections B and C of this section.

4. Notification of the department. A copy of the notice required in subdivision D 2 of this section shall be forwarded to the department by the criminal justice agency at the same time it is provided to the individual.

E. Administrative appeal.

1. Departmental assessment. The individual or his attorney challenging his record, within 30 days of the postmark of his notification of the decision of the administrative review, may request that the Director of the Department of Criminal Justice Services review the challenge and conduct an informal hearing. The director may designate a hearing officer for this purpose.

2. Determination of merits of case. The director or his designee shall contact the criminal justice agencies involved and request any and all information needed. Criminal justice agencies shall supply the information requested in a timely manner to allow the department to respond to the individual within 30 days. The director will then rule on the merits of a hearing and notify the individual or his attorney that such hearing will or will not be held.

3. Hearing. The hearing, if held, shall be conducted within 30 days of the receipt of the request, and the decision of the hearing officer communicated to the individual or his attorney within 30 days of the hearing.

4. Finding. If the director or the hearing officer determines that correction and modification of the records are required, correction of the record and notification of all involved parties shall proceed according to the procedures outlined in subsections B and C of this section.

5. Removal of a challenge designation. When records and relevant action taken by the criminal justice agencies involved are deemed to be correct, the department shall notify the affected criminal justice agencies to remove the challenge designation from their files.

F. Department notification following corrections. For audit purposes, the Central Criminal Records Exchange shall annually forward the names and addresses of the agencies that originated erroneous record information or received erroneous information from the exchange in that year to the Department of Criminal Justice Services.

Historical Notes

Derived from VR240-02-1 § 2.5, eff. April 1, 1986; amended, Volume 06, Issue 04, eff. January 1, 1990; Volume 10, Issue 07, eff. February 1, 1994; Volume 33, Issue 03, eff. November 4, 2016.

Statutory Authority

§§ 9.1-102 and 9.1-131 of the Code of Virginia.