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. 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.
