Can a Misdemeanor Sex Offense Be Expunged in West Virginia?
Full Question:
Answer:
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, inclusive, may petition the circuit court in which the conviction or convictions occurred for expungement of the conviction, except for the provisions under section (i) of the statute. Section (i) states:
"No person shall be eligible for expungement of a conviction and the
records associated therewith pursuant to the provisions of subsection (a)
of 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."
Please see the attorney information at the following link:
http://lawyers.uslegal.com/criminal-law/west-virginia/
Please see the following WV statutes:
Section 5-1-16a. Expungement of criminal record upon full and
unconditional pardon.
(a) Any person who has received a full and unconditional pardon from
the Governor, pursuant to the provisions of section eleven, article VII
of the Constitution of West Virginia and section sixteen of this
article, may petition the circuit court in the county where the
conviction was had to have the record of such conviction expunged. The
petition shall 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 shall 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. For the purposes of this
section, "public record" or "record" does not include the records of the
Governor, the Legislature or the Secretary of State that pertain to a
grant of pardon. Such records that pertain to a grant of pardon are not
subject to an order of expungement. The amendment to this section during
the fourth extraordinary session of the Legislature in the year 2009 is
not for the purpose of changing existing law, but is intended to clarify
the intent of the Legislature as to existing law regarding expungement.
(b) The record expunged pursuant to the provisions of this section may
not be considered in an application to any educational institution in
this state or an application for any licensure required by any
professional organization in this state.
(c) No person shall be eligible for expungement pursuant to this
section until one year after having been pardoned.
(d) No person shall be eligible for expungement pursuant to this
section until five years after the discharge of his or her sentence upon the
conviction for which he or she was pardoned.
(e) No person shall be eligible for expungement of a record of conviction
of first degree murder, as defined in section one, article two,
chapter sixty-one of this code; treason, as defined in section one, article one of
said chapter; kidnapping, as defined in section fourteen-a, article two of
said chapter; or any felony defined in article eight-b of said chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
Section 61-11-26. Expungement of certain criminal convictions;
procedures; effect.
(a) 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, inclusive, may, pursuant to the provisions of
this section, petition the circuit court in which the conviction or
convictions occurred for expungement of the conviction or convictions and
the records associated therewith. The clerk of the circuit court shall
charge and collect in advance the same fee as is charged for instituting
a civil action pursuant to subdivision (1), subsection (a),
section eleven, article one, chapter fifty-nine of this code for a petition for
expungement.
(b) Expungement shall not be available for any conviction of an offense
listed in subsection (i) of this section. The relief afforded by this
subsection is only available to persons having no other prior or
subsequent convictions other than minor traffic violations at the time
the petition is filed: Provided, That 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 provisions of
subsection (a) of this section until one year after the conviction,
completion of any sentence of incarceration or probation, whichever is
later in time.
(c) Each petition to expunge a conviction or convictions pursuant to this
section shall 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.
(e) Upon receipt of a petition for expungement, 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; all other state
and local government agencies whose records would be affected by the
proposed expungement and any other interested individual or agency that
desires to oppose the expungement shall, within thirty days of receipt of
the petition, file a notice of opposition with the court with supporting
documentation and sworn statements setting forth the reasons for
resisting the petition for expungement. A copy of any notice of
opposition with supporting documentation and sworn statements shall be
served upon the petitioner in accordance with trial court rules. The
petitioner may file a reply no later than ten days after service of any
notice of opposition to the petition for expungement.
(f) The burden of proof shall be on the petitioner to prove by clear
and convincing evidence that: (1) The conviction or convictions for which
expungement is sought are the only convictions against petitioner and
that the conviction or convictions are not excluded from expungement by
subsection (j) of this section; (2) that the requisite time period has
passed since the conviction or convictions or end of the completion of any
sentence of incarceration or probation; (3) petitioner has no criminal
charges pending against him or her; (4) the expungement is consistent
with the public welfare; (5) petitioner has, by his or her behavior since
the conviction or convictions, evidenced that he or she has been
rehabilitated and is law-abiding; and (6) any other matter deemed
appropriate or necessary by the court to make a determination regarding
the petition for expungement.
(g) Within sixty days of the filing of a petition for expungement the
circuit court shall:
(1) Summarily grant the petition;
(2) Set the matter for hearing; or
(3) Summarily deny the petition if the court determines that the
petition is insufficient or, based upon supporting documentation and sworn
statements filed in opposition to the petition, the court determines that
the petitioner, as a matter of law, is not entitled to expungement.
(h) If the court sets the matter for hearing, all interested parties
who have filed a notice of opposition shall be notified. At the hearing,
the court may inquire into the background of the petitioner and shall
have access to any reports or records relating to the petitioner that are
on file with any law-enforcement authority, the institution of
confinement, if any, and parole authority or other agency which was in
any way involved with the petitioner's arrest, conviction, sentence and
post-conviction supervision, including any record of arrest or conviction
in any other state or federal court. The court may hear testimony of
witnesses and any other matter the court deems proper and relevant to its
determination regarding the petition. The court shall enter an order
reflecting its ruling on the petition for expungement with appropriate
findings of fact and conclusions of law.
(i) No person shall be eligible for expungement of a conviction and the
records associated therewith pursuant to the provisions of subsection (a)
of 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.
(j) If the court grants the petition for expungement, it shall 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 conviction
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 shall also be sealed. For the purposes of this section,
"records" do not include the records of the Governor, the Legislature or
the Secretary of State that pertain to a grant of pardon. Such records
that pertain to a grant of pardon are not subject to an order of
expungement. The amendment to this section during the fourth
extraordinary session of the Legislature in the year 2009 is not for the
purpose of changing existing law, but is intended to clarify the intent of
the Legislature as to existing law regarding expungement.
(k) Upon expungement, the proceedings in the matter shall be deemed
never to have occurred. The court and other agencies shall reply to any
inquiry that no record exists on the matter. The person whose record is
expunged shall not have to disclose the fact of the record or any matter
relating thereto on an application for employment, credit or other type
of application.
(l) Inspection of the sealed records in the court's possession may
thereafter be permitted by the court only upon a motion by the person who
is the subject of the records or upon a petition filed by a prosecuting
attorney that inspection and possible use of the records in question are
necessary to the investigation or prosecution of a crime in this state or
another jurisdiction. If the court finds that the interests of justice
will be served by granting a petition to inspect the sealed record, it
may be granted.