Expungements can restore a person’s record for the future. A criminal conviction, whether a felony or a misdemeanor, can follow a person throughout his or her life and effect employment, housing, and education. West Virginia is one of nearly thirty-six states that allows certain crimes to be expunged, or removed, from a person’s record. Effective June 7, 2019, West Virginia changed the way criminal convictions may be expunged. See W.Va. Code § 61-11-26. This blog provides a general overview of the new law and addresses expungements of criminal convictions. It is not a substitute for legal advice regarding your specific situation.
Certain Misdemeanors Can be Expunged
A person convicted of one or more misdemeanor offenses may petition the circuit court for the expungement of the conviction or convictions and the records associated with the conviction or convictions. A petition for expungement may be filed one year after the conviction(s) or one year after the completion of any jail sentence or probation, whichever is later. If a person has more that one misdemeanor, there is a two-year waiting period.
Certain misdemeanor offenses cannot be expunged. These include but are not limited to: misdemeanors involving the infliction of injury to a minor or a law-enforcement officer; an offense where a weapon was exhibited; domestic violence; abuse or neglect of an incapacitated adult; DUI; driving while suspended or revoked; and stalking.
Certain Non-Violent Felonies Can be Expunged
A person convicted of certain non-violent felony offenses may petition the circuit for the expungement of the conviction and the records associated with the conviction. A petition for expungement may be filed five years after the conviction, completion of incarceration, or completion of probation, whichever is later.
Certain felony convictions cannot be expunged. Examples of offenses that cannot be expunged include: offenses involving violence against a person; an offense where the victim was a minor; a sexual offense; an offense where a weapon was exhibited; domestic violence; abuse or neglect of an incapacitated adult; felony DUI; felony driving while suspended or revoked; incest; and burglary.
The Expungement Process
It is important that you speak with an experienced criminal defense lawyer to see if your conviction qualifies for expungement. Generally, a petition for expungement may be filed in the circuit court in the county where the offense occurred. A verified petition must be filed with the court addressing the specific requirements contained in the statute. W.Va. Code § 61-11-26(d). The petition must be served upon the Superintendent of the State Police, the prosecuting attorney, and other persons designated by statute. If the crime involved a victim, the victim will be provided notice and given the opportunity to object.
Within sixty days of filing a petition, the court will summarily grant the petition, set the matter for hearing, or summarily deny the petition. Once a petition is granted, the law contemplates that a person will be restored to the same position he or she was in had the conviction never occurred. Upon conviction, a person is generally not required to disclose the conviction in most, but not all, circumstances.
If you have been convicted of a misdemeanor or felony and desire to obtain a criminal expungement, you should consult with a criminal defense attorney. Barney Law PLLC obtains expungements for clients in Putnam County, Kanawha County, and surrounding areas. Feel free to call us at 304-932-8775 to discuss your unique situation.