Expungement / Record Sealing Petition and Eligibility Memo — West Virginia

West Virginia Expungement Eligibility Memo

Quick-reference table

Part A — Eligibility memorandum

TO: [CLIENT NAME]

FROM: [ATTORNEY NAME / FIRM]

DATE: [__/__/____]

RE: West Virginia expungement eligibility

1. Matter inventory

Current pending charges: [____________________________________________]

Prior felony conviction, for § 61-11-25 analysis: [___________________]

Prior expungement or similar conviction relief: [_____________________]

2. Nonconviction relief — § 61-11-25

A. Eligible dispositions

☐ Acquittal.

☐ Dismissal not exchanged for a guilty plea to another offense resulting in
conviction.

☐ Dismissal after successful completion of pretrial diversion under
§ 61-11-22.

☐ Dismissal after successful completion of deferred adjudication under
§ 61-11-22a.

For the diversion or deferred-adjudication route, all charges sought to be
expunged must arise from the same transaction or occurrence.

B. Additional limits and procedure

☐ Petitioner has never been convicted of a felony.

☐ At least 60 days have passed since the acquittal or dismissal.

☐ No current charge or proceeding remains pending concerning the matter.

☐ The matter does not fall within the statute's deferred-adjudication,
mental-illness, intellectual-disability, addiction, or DMV exceptions.

The action is filed in the circuit court where the charges were filed. No
filing fee or costs are assessed. The court may set a hearing; if it does, the
court notifies the prosecuting attorney and arresting agency.

3. Conviction relief — § 61-11-26

A. Scope

The standard track covers:

• misdemeanor convictions, including multiple misdemeanors; and
• a nonviolent felony or multiple nonviolent felonies arising from the same
  transaction or series of transactions.

B. Waiting periods

C. Exclusions

Check every category in § 61-11-26(c), including:

☐ Felony crime of violence against the person.

☐ Misdemeanor intentionally inflicting physical injury on a minor or law-
enforcement officer.

☐ Felony with a minor victim as statutorily defined.

☐ Listed sex offense.

☐ Use or exhibition of a deadly weapon or dangerous instrument.

☐ Listed domestic-violence, assault/battery, or abuse offense.

☐ DUI.

☐ Listed driver's-license or commercial-driver offense.

☐ Listed incest, animal-cruelty, stalking, dwelling-burglary, or sexually
motivated offense.

☐ Listed conspiracy or attempt.

A DUI conviction at least five years old does not preclude expungement of an
unrelated, otherwise eligible felony.

D. Clear-and-convincing showing

The petitioner must prove:

☐ The requested conviction is the only conviction for the specified offense
or offenses and is not excluded.

☐ The applicable waiting period passed.

☐ No criminal charge is pending.

☐ Expungement is consistent with public welfare.

☐ Post-conviction behavior shows rehabilitation and law-abiding conduct.

4. Accelerated relief — § 61-11-26a

The conviction must already be eligible under § 61-11-26. The petitioner must
also establish one or both:

☐ Medically documented substance-abuse history and successful compliance with
a substance-abuse treatment or recovery and counseling program approved by
the Secretary of the Department of Health.

☐ Graduation from a West Virginia Department of Education-approved job-
readiness adult training course.

The current time rules are:

• single misdemeanor: successful program compliance for 90 days or
  completion of the approved course, after completion of incarceration and
  supervision;

• multiple misdemeanors: one year after the latest statutory event for the
  last conviction; and

• nonviolent felony: three years after the latest of conviction,
  incarceration, or supervision.

Attach treatment-compliance documentation and/or the graduation certificate.
The $100 State Police processing fee is waived, but the circuit-court filing
fee remains.

5. Required sworn content — § 61-11-26(d)

The verified petition must include:

☐ Current name and all prior legal names or aliases.

☐ All addresses from offense date to petition date.

☐ Date of birth and Social Security number.

☐ Arrest date, court, and complaint, indictment, summons, or case number.

☐ Charged and convicted statutes and offenses.

☐ Victim names or statement that none exist.

☐ Current and prior restitution, protection, restraining, and no-contact
orders; attach any current order.

☐ Disposition and sentence.

☐ Grounds for expungement, including employment or licensure.

☐ Rehabilitation steps.

☐ Prior expungement or similar conviction relief in any jurisdiction.

☐ Supporting documents, sworn statements, and affidavits.

6. Service, opposition, and ruling

The petitioner serves the petition and attachments on:

• the State Police Superintendent;
• each county prosecuting attorney;
• the chief law-enforcement officer of the arresting agency;

• the superintendent, warden, or Commissioner of Corrections for any
  institution of confinement; and

• each circuit, magistrate, or municipal court that disposed of the charge.

The prosecutor sends the papers and proposed order to identified victims.
Recipients and other interested persons may oppose within 30 days of receipt.
The petitioner may reply within 30 days after service of an opposition.

Within 60 days after filing, the circuit court grants, returns for completion
or correction, sets a hearing, or summarily denies the petition.

7. Fees

§ 61-11-25: no filing fee or assessed costs.

§ 61-11-26 / § 61-11-26a: $200 circuit-court filing fee under current
§ 59-1-11(a)(1), plus applicable service and copy charges.

After grant under § 61-11-26: $100 State Police processing fee.

Grant under § 61-11-26a: $100 processing fee waived.

8. Effect and residual access

If granted, the court seals its records and other agencies expunge their
records. Each ordered agency certifies completion within 60 days after entry.

Subject to exceptions, the proceedings are treated as never having occurred,
the person generally need not disclose the record, and the person cannot be
convicted of perjury merely for failing to acknowledge it while complying
with the disclosure statute.

Exceptions include:

• disclosure when applying for work involving prevention, detection,
  investigation, prosecution, or incarceration for law violations;

• access for a criminal-history check required by state or federal law; and

• court-authorized inspection on motion of the person or petition of a
  prosecutor for a criminal investigation or prosecution.

9. Recommendation

☐ File under § 61-11-25 using SCA-C903 or a current tailored petition.

☐ File SCA-C906 under § 61-11-26.

☐ File SCA-C907 under § 61-11-26.

☐ Use the § 61-11-26a accelerated track and attach program proof.

☐ Defer until [__/__/____].

☐ No current relief identified because: [_______________________________].

Part B — Filing worksheet

Form and attachments

☐ SCA-C900 instructions reviewed against the current Code.

☐ Correct form selected: ☐ SCA-C903 ☐ SCA-C906 ☐ SCA-C907.

☐ Certified disposition and sentence documents attached.

☐ Incarceration and supervision completion proof attached.

☐ Current contact-order copy attached, if applicable.

☐ Treatment or job-readiness proof attached, if using § 61-11-26a.

☐ Supporting rehabilitation affidavits or documents attached.

Filing and service

☐ Verified before a notary or other authorized official.

☐ Filed in the proper circuit court.

☐ $200 filing fee and local service/copy charges confirmed for conviction
petition.

☐ All statutory recipients served under the trial-court rules.

☐ Service addresses and methods recorded.

☐ 30-day opposition and reply periods calendared.

☐ Court's 60-day action period calendared.

Post-order

☐ State Police processing fee paid if required.

☐ Certified order retained.

☐ Agency certifications of completion tracked for 60 days after entry.

☐ Client advised about disclosure and statutory-background-check exceptions.

Sources and References

• W. Va. Code § 61-11-25
• W. Va. Code § 61-11-26
• W. Va. Code § 61-11-26a
• W. Va. Code § 59-1-11
• West Virginia Judiciary — Court Forms