Expungement of Criminal Records – General – West Virginia
1. What is an expungement?
The omission, sealing, deletion, or obliteration of records. Thereafter, the person may legally deny the existence of the records and may not be denied any permit, license, or employment based upon the expunged records. However, expunged records may be disclosed for purposes of a pending criminal investigation or prosecution. W. Va. Code § 61-11-25.
2. Do the records just disappear?
No. When a record is expunged, the record is not destroyed but removed from public access and sealed.
3. Who is eligible to get records expunged?
1) A person receiving a full and unconditional executive pardon, two years after having been pardoned and twenty years after the discharge of his or her sentence upon the conviction for which he or she was pardoned. A person is not eligible for expungement if the pardoned offense is 1st degree murder, kidnapping, treason, or a sex offense felony. W. Va. Code § 5-1-16a.
2) A person found not guilty of a criminal offense, or against whom charges have been dismissed, and not in exchange for a guilty plea to another offense. They must have no prior felonies. A person who was found not guilty by reason of mental illness, mental retardation or addiction is not eligible. W. Va. Code § 61-11-25.
3) 1st time drug offenders who have completed deferred sentence and discharged and dismissed may apply to the court for an order of expungment 6 months after end of their term of probation. They must have no serious or repeated violations of probation. W. Va. Code § 60A-4-407.
4) Any person convicted of a misdemeanor offense or offenses arising from the same transaction committed while he or she was between the ages of eighteen and twenty-six. At the time the petition is filed and during the time the petition is pending, petitioner may not be the subject of an arrest or any other pending criminal proceeding. No person shall be eligible for expungement pursuant to the this section until one year after the conviction, completion of any sentence of incarceration or probation, whichever is later in time. No person shall be eligible for expungement of a conviction and the records associated therewith pursuant this section for any violation involving the infliction of serious physical
injury; involving the provisions of article eight-b of this chapter where the petitioner was eighteen years old, or older, at the time the violation occurred and the victim was twelve years of age, or younger,
at the time the violation occurred; involving the use or exhibition of a deadly weapon or dangerous instrument; of the provisions of subsection (b) or (c), section nine, article two of this chapter where the victim was a spouse, a person with whom the person seeking expungement had a child in common or with whom the person seeking expungement ever cohabitated prior to the offense; any violation of the
provisions of section twenty-eight of said article; a conviction for driving under the influence of
alcohol, controlled substances or a conviction for a violation of section three, article four, chapter seventeen-b of this code or section nineteen, article eight of this chapter. W. Va. Code § 61-11-26
4. What records may be expunged?
Under W. Va. Code § 60A-4-407, 1st time drug offenders may get an order to expunge from all official records all records of his or her arrest, trial, and conviction.
Persons dismissed and discharged under W. Va. Code § 61-11-25 may have receive an expungement order that includes, but is not limited to, arrest records, fingerprints, photographs, index references or other data whether in documentary or electronic form, relating to the arrest, charge or other matters arising out of the arrest or charge. Criminal investigation reports are excluded.
W.Va. Code § §15-2C-5. provides that registry listings of abuse, neglect or misappropriation of property with respect to an individual shall promptly be expunged in cases where a conviction is vacated or overturned following appeal or granted executive clemency.
5. How do I get records expunged?
An eligible person granted an executive pardon may petition the circuit court in the county where the conviction was had to have the record of such conviction expunged. The petition must be served upon the prosecuting attorney of the county where the petition was filed. Any person petitioning the court for an order of expungement must publish a notice of the time and place that such petition will be made, to be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of the W. Va. Code, and the publication area for such publication will be the county where the petition is filed. The circuit court, upon verification of the act of pardon and after a hearing to determine that good cause exists, may enter an order directing that all public record of the petitioner’s conviction be expunged.
A person discharged and dismissed under W. Va. Code § 61-11-25 may make a motion to expunge records in the circuit court in which the charges were filed. The expungement motion must not be filed sooner than sixty days following the order of acquittal or dismissal by the court. Following the filing of the motion, the court may set a date for a hearing. If the court does so, it will notify the prosecuting attorney and the arresting agency of the motion and provide an opportunity for a response to the expungement motion.
If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official including law-enforcement records. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty days of the entry of the expungement order, that the required expungement has been completed. All orders enforcing the expungement procedure will also be sealed.
A person discharged and dismissed under W. Va. Code § 60A-4-407, may apply to the court for an order to expunge six months after their term of probation expires. If the court determines after a hearing that the person during the period of his or her probation and during the period of time prior to his or her application to the court under this section has not been guilty of any serious or repeated violation of the conditions of his or her probation, it will order the expungement.
Under W. Va. Code § 5-1-16a, the petition must be served upon the prosecuting attorney of the county where the petition was filed. Any person petitioning the court for an order of expungement shall publish a notice of the time and place that such petition will be made, which notice must be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county where the petition is filed. The circuit court, upon verification of the act of pardon and after a hearing to determine that good cause exists, may enter an order directing that all public record of the petitioner’s conviction be expunged.
Under W. Va. Code § 61-11-26, a petition to expunge a conviction or convictions pursuant to this section must be verified under oath and include the following information:
(1) Petitioner’s current name and all other legal names or aliases by which petitioner has been known at any time;
(2) All of petitioner’s addresses from the date of the offense or alleged offense in connection with which an expungement order is sought to date of the petition;
(3) Petitioner’s date of birth and social security number;
(4) Petitioner’s date of arrest, the court of jurisdiction and criminal complaint, indictment, summons or case number;
(5) The statute or statutes and offense or offenses for which petitioner was charged and of which petitioner was convicted;
(6) The names of any victim or victims, or that there were no identifiable victims;
(7) Whether there is any current order for restitution, protection, restraining order or other no contact order prohibiting the petitioner from contacting the victims or whether there has ever been a prior order for restitution, protection or restraining order prohibiting the petitioner from contacting the victim. If there is such a current order, petitioner shall attach a copy of that order to his or her petition;
(8) The court’s disposition of the matter and punishment imposed, if any;
(9) Why expungement is sought, such as, but not limited to, employment or licensure purposes, and why it should be granted;
(10) The steps the petitioner has taken since the time of the offenses toward personal rehabilitation, including treatment, work or other personal history that demonstrates rehabilitation;
(11) Whether petitioner has ever been granted expungement or similar relief regarding a criminal conviction by any court in this state, any other state or by any federal court; and
(12) Any supporting documents, sworn statements, affidavits or other information supporting the petition to expunge.
(d) A copy of the petition, with any supporting documentation, shall be served by petitioner pursuant to the rules of the trial court upon the Superintendent of the State Police; the prosecuting attorney of the county of conviction; the chief of police or other executive head of the municipal police department wherein the offense was committed; the chief law-enforcement officer of any other law-enforcement agency which participated in the arrest of the petitioner; the superintendent or warden of any institution in which the petitioner was confined; the magistrate court or municipal court which disposed of the petitioner’s criminal charge; and all other state and local government agencies whose records would be affected by the proposed expungement. The prosecutorial office that had jurisdiction over the offense or offenses for which expungement is sought shall serve by first class mail the petition for expungement, accompanying documentation and any proposed expungement order to any identified victims.