Expungement / Record Sealing Petition and Eligibility Memo — West Virginia

Expungement / Record Sealing Petition and Eligibility Memo (WEST VIRGINIA)

Quick-Reference Summary

Part A — Eligibility Memo

TO: [CLIENT NAME]
FROM: [ATTORNEY NAME], [FIRM]
RE: Eligibility for Expungement Under West Virginia Code §§ 61-11-25 / 26 / 26a
DATE: [__/__/____]

1. Statutory Framework

West Virginia's expungement regime has three principal components:

1. Non-conviction expungement (W. Va. Code § 61-11-25) — for acquittals, dismissals, and unprosecuted cases.
2. Conviction expungement (W. Va. Code § 61-11-26, Second Chance for Employment Act) — broadly expanded in 2020 to cover misdemeanors and certain nonviolent felonies after specified waiting periods.
3. Accelerated conviction expungement (W. Va. Code § 61-11-26a) — available where the petitioner has completed an approved substance-abuse treatment/recovery program and/or a WV Department of Education-approved job-readiness adult training course; shortens waiting periods substantially and waives the $100 State Police fee.

2. Eligibility Analysis

A. Categorical Exclusions (§ 61-11-26(c))

The conviction is ineligible if it falls within any of the following:

• ☐ Felony offense of violence against the person (§ 61-11-26(p)(2));
• ☐ Misdemeanor involving intentional infliction of injury to a minor or law-enforcement officer;
• ☐ Felony with a minor victim (§ 61-11-26(p)(3));
• ☐ Sex offenses (§ 61-8B-1 et seq.; §§ 61-8B-8 and -9);
• ☐ Offense in which petitioner used or exhibited a deadly weapon or dangerous instrument;
• ☐ Domestic-violence violations of § 61-2-28 (strangulation), § 61-2-9(b)/(c) (where victim was a spouse, co-parent, or cohabitant), or § 61-2-28(c);
• ☐ Violation of § 61-2-29 (abuse of incapacitated adult);
• ☐ Driving under the influence (DUI 5+ years old does not bar an unrelated, otherwise expungeable felony);
• ☐ Violation of § 17B-4-3 (driver's license fraud);
• ☐ Violation of § 61-8-12 (obscene material to minors) or § 61-8-19 (cruelty to animals/specified categories);
• ☐ Violation of § 61-2-9a (stalking);
• ☐ Burglary of a structure regularly used as a dwelling (§ 61-3-11);
• ☐ Any conviction with a sentencing-court finding that the offense was sexually motivated;
• ☐ Violation of § 17E-1-13(g);
• ☐ Conspiracy or attempt to commit any of items 1–11 or 13 above.

If any box is checked, conviction expungement under § 61-11-26 / -26a is not available (subject to the DUI 5-year carve-out for unrelated eligible offenses).

B. Waiting Periods (§ 61-11-26(b))

For all tracks, the waiting period runs from the latest of (a) the date of conviction, (b) completion of any sentence of incarceration, or (c) completion of any period of supervision.

C. Non-Conviction Expungement (§ 61-11-25)

• ☐ Petitioner was acquitted, charges were dismissed, or matter was not prosecuted?
• ☐ Petition filed in the circuit court of conviction / arrest / prosecution?
• ☐ Notice served on prosecuting attorney, State Police, and any victims?

3. Pleading Requirements (§ 61-11-26(d))

The verified petition must include:

• ☐ Petitioner's current name and aliases;
• ☐ All addresses since the offense;
• ☐ Date of birth and SSN;
• ☐ Arrest date, court of jurisdiction, complaint/indictment/case number;
• ☐ Identification of each conviction sought to be expunged and underlying statute(s);
• ☐ Sentence imposed and date of completion;
• ☐ Other arrests and convictions in any jurisdiction;
• ☐ Reasons supporting expungement;
• ☐ Verification under oath.

4. Effect of Expungement (§ 61-11-26(k)–(m))

• Court records are sealed; agency records are expunged.
• Petitioner generally need not disclose the conviction; statutory exceptions exist for law-enforcement employment applications.
• Anyone required by law to conduct criminal-history checks may still access the record.
• Prosecutors may inspect the record on motion if necessary to investigate or prosecute a crime.

5. Recommendation

Based on the foregoing, the undersigned recommends petitioning under [§ 61-11-25 / § 61-11-26 / § 61-11-26a]. The proposed filing court is the Circuit Court of [____] County, West Virginia.

Part B — Verified Petition Template

IN THE CIRCUIT COURT OF [____] COUNTY, WEST VIRGINIA

Civil Action No.: [____________________]
Underlying Criminal Case No(s).: [____________________]

VERIFIED PETITION FOR EXPUNGEMENT PURSUANT TO W. VA. CODE § 61-11-26 / § 61-11-26a / § 61-11-25

COMES NOW the Petitioner, [PETITIONER NAME], by and through undersigned counsel, and respectfully petitions this Court for an order expunging the criminal records identified below pursuant to W. Va. Code [§ 61-11-26 / § 61-11-26a / § 61-11-25], and states under oath:

I. PETITIONER

1. Current legal name: [____________________].
2. Other names and aliases: [____________________].
3. Date of birth: [__/__/____].
4. Social Security number: [____________________] (filed under seal per local rule).
5. All addresses since the date of the offense:
   a. [____________________];
   b. [____________________];
   c. [____________________].

II. RECORDS SOUGHT TO BE EXPUNGED

6. Date of arrest: [__/__/____].
7. Arresting agency: [____________________].
8. Court of jurisdiction: [____________________].
9. Criminal complaint, indictment, summons, or case number: [____________________].
10. Offense(s) of conviction and West Virginia Code citation(s): [____________________].
11. Date of conviction: [__/__/____].
12. Sentence imposed: [____________________].
13. Date sentence of incarceration was completed: [__/__/____].
14. Date supervision (probation, parole, home incarceration) was completed: [__/__/____].
15. Date all fines, costs, and restitution were paid: [__/__/____].

III. CRIMINAL HISTORY DISCLOSURE

16. Other arrests in any jurisdiction:
    a. [____________________];
    b. [____________________].

17. Other convictions in any jurisdiction:
    a. [____________________];
    b. [____________________].

18. No criminal charges or proceedings are currently pending against Petitioner in any jurisdiction.

IV. STATUTORY ELIGIBILITY (§ 61-11-26 / § 61-11-26a)

19. The conviction(s) sought to be expunged are not within any category excluded by W. Va. Code § 61-11-26(c).
20. [Standard track]: The applicable waiting period under W. Va. Code § 61-11-26(b)([1/2/3]) — [one / two / five] years — has elapsed since the latest of conviction, completion of incarceration, or completion of supervision.
21. [Accelerated track under § 61-11-26a]: Petitioner has (a) a medically documented history of substance abuse and successful compliance with a Department of Health-approved substance-abuse treatment and recovery and counseling program for [90 days / 1 year / 3 years] (Exhibit [__]); and/or (b) graduated from a WV Department of Education-approved job-readiness adult training course (Exhibit [__]). The reduced waiting period under § 61-11-26a([1/2/3]) has elapsed.

V. REASONS FOR EXPUNGEMENT

22. Since completion of sentence, Petitioner has [employment, education, family responsibilities, treatment, community involvement, time without further offenses]: [____________________].

23. The conviction continues to cause Petitioner [employment denial, occupational-licensing denial, housing denial, social stigma, immigration consequence]: [____________________].

VI. NOTICE

24. The petition will be served on the prosecuting attorney, the West Virginia State Police, the arresting agency, and all identified victims pursuant to W. Va. Code § 61-11-26(g).

VII. ATTACHED EXHIBITS

• Exhibit A — Certified judgment and sentencing order.
• Exhibit B — Order discharging probation / parole / community correction.
• Exhibit C — Proof of payment of fines, costs, restitution.
• Exhibit D — Certified WV State Police criminal history record.
• Exhibit E — Affidavit of Petitioner.
• Exhibit F — Documentation of substance-abuse treatment and recovery (if § 61-11-26a).
• Exhibit G — Certificate of completion of job-readiness training (if § 61-11-26a).
• Exhibit H — Supporting letters (employer, treatment provider, community).

WHEREFORE, Petitioner respectfully requests that this Court:

A. Set this matter for hearing if the Court deems necessary;
B. Enter an Order finding Petitioner eligible and granting expungement of the conviction and associated records;
C. Direct the West Virginia State Police, the arresting agency, the magistrate clerk, the circuit clerk, and all custodians of records to seal or expunge their files in compliance with the Order;
D. Direct that, except as provided in W. Va. Code § 61-11-26(l)–(m), Petitioner shall be treated for all purposes as if the conviction had not occurred; and
E. Grant such other relief as the Court deems just.

Respectfully submitted,

[___________________________________]
[ATTORNEY NAME], WV State Bar No. [______]
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]
Counsel for Petitioner

VERIFICATION

STATE OF WEST VIRGINIA, COUNTY OF [____], to-wit:

I, [PETITIONER NAME], being first duly sworn upon oath, depose and state that I am the Petitioner in the foregoing Verified Petition; that I have read the same; and that the matters and facts therein set forth are true and correct to the best of my knowledge, information, and belief.

[___________________________________]
[PETITIONER NAME]

Taken, subscribed, and sworn to before me this [____] day of [______________], [______].

My commission expires: [__/__/____].

[___________________________________]
Notary Public

CERTIFICATE OF SERVICE

I, [ATTORNEY NAME], hereby certify that on [__/__/____] I served the foregoing Verified Petition for Expungement upon:

• Prosecuting Attorney of [____] County, [Address]
• West Virginia State Police, Records Section, 725 Jefferson Road, South Charleston, WV 25309
• Arresting agency: [____________________]
• Victim(s) of record: [____________________]

[___________________________________]
[ATTORNEY NAME]

Part C — Filing Checklist

Pre-Filing

• ☐ Confirm category: non-conviction (§ 61-11-25), standard conviction (§ 61-11-26), or accelerated treatment/job-readiness (§ 61-11-26a).
• ☐ Confirm conviction not categorically excluded by § 61-11-26(c).
• ☐ Confirm waiting period satisfied for each track.
• ☐ Obtain certified copy of judgment, sentencing order, probation/parole discharge, and proof of payment of fines, costs, and restitution.
• ☐ Obtain WV State Police criminal history record.
• ☐ For § 61-11-26a: obtain medical documentation of substance-abuse history and treatment compliance, or job-readiness completion certificate.
• ☐ Identify all victims entitled to notice (§ 61-11-26(g)).

Drafting

• ☐ Verified petition with full content required by § 61-11-26(d).
• ☐ Include all aliases, addresses since the offense, and all other arrests/convictions in any jurisdiction.
• ☐ Address each statutory eligibility element (waiting period, exclusions, completion of sentence).
• ☐ Prepare proposed Order tracking § 61-11-26(k) effect language.

Filing and Service

• ☐ File verified petition in the Circuit Court of the county where the conviction occurred.
• ☐ For multi-circuit petitions: identify and group convictions by court (§ 61-11-26(d)).
• ☐ Pay circuit court filing fee (W. Va. Code § 59-1-11(a)(1)) and $100 State Police processing fee (§ 61-11-26(n)) — § 61-11-26a waives the $100 fee.
• ☐ Serve prosecuting attorney, WV State Police, arresting agency, and all identified victims.

Hearing

• ☐ Be prepared to address court's discretionary factors (rehabilitation; collateral consequences; public interest).
• ☐ Witnesses or affidavits regarding rehabilitation and employment impact.
• ☐ Submit proposed Order.

Post-Order

• ☐ Serve entered Order on WV State Police, arresting agency, and all clerks holding records.
• ☐ Confirm records sealed in court files and removed from law-enforcement public-facing databases.
• ☐ Advise client about residual access (statutory background-check requirements; law-enforcement employment applications; private database vendors).

Sources and References

• W. Va. Code § 61-11-26 (Expungement of certain criminal convictions) — https://code.wvlegislature.gov/61-11-26/
• W. Va. Code § 61-11-26a (Accelerated expungement with treatment/job-readiness) — https://code.wvlegislature.gov/61-11-26A/
• W. Va. Code § 61-11-25 (Expungement of non-conviction records) — https://code.wvlegislature.gov/61-11-25/
• WV Code Chapter 61, Article 11 (full text) — https://code.wvlegislature.gov/61-11/
• WV Supreme Court of Appeals — Forms and Resources — http://www.courtswv.gov/lower-courts/circuit-court/circuit-forms.html
• National Reentry Resource Center — West Virginia Profile — https://nationalreentryresourcecenter.org/cleanslate/states/west-virginia
• West Virginia Law Review, "Emergence from Civil Death: The Evolution of Expungement in West Virginia" — https://wvlawreview.wvu.edu/west-virginia-law-review-online/2015/05/19/emergence-from-civil-death-the-evolution-of-expungement-in-west-virginia