Expungement Petition - Preparation Worksheet - West Virginia

PREPARATION GUIDE — NOT A SUBSTITUTE FOR THE CURRENT COURT FORM

Current statewide forms include SCA-C903 for an acquittal or dismissal
for reasons other than entry of a plea, SCA-C906 for misdemeanor
convictions and traffic citations, and SCA-C907 for felony convictions.
Section 61-11-25 also covers specified completed pretrial-diversion and
deferred-adjudication matters that SCA-C903 does not expressly address.

West Virginia Expungement Preparation Guide

1. Select the pathway

☐ Acquittal or dismissal not exchanged for a guilty plea: W. Va. Code
§ 61-11-25; review SCA-C903.

☐ Dismissal after successful pretrial diversion under § 61-11-22 or
deferred adjudication under § 61-11-22a: § 61-11-25; confirm the current
petition format with the circuit clerk because SCA-C903 is narrower.

☐ Misdemeanor conviction or traffic citation: § 61-11-26 or § 61-11-26a;
use SCA-C906.

☐ Eligible nonviolent felony conviction: § 61-11-26 or § 61-11-26a; use
SCA-C907.

2. Caption

Circuit Court of [COUNTY] County, West Virginia

Circuit court civil case number: [________________________________]

Underlying court and case number: [_______________________________]

3. Nonconviction pathway — § 61-11-25

Eligibility

☐ The charge ended in acquittal or dismissal and was not dismissed in exchange
for a guilty plea to another offense resulting in conviction; or the charge
was dismissed after full and successful completion of qualifying pretrial
diversion or deferred adjudication.

☐ For diversion or deferred adjudication, every charge requested for
expungement arose from the same transaction or occurrence.

☐ The petitioner has never been convicted of a felony.

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

☐ The petition is filed at least 60 days after the acquittal or dismissal
order.

Screen the deferred-adjudication and mental-illness exceptions in subsection
(a), including the listed domestic-violence-related charges and exempt
investigation records.

Filing information

• Arrest date: [__/__/____]
• Arresting or charging agency: [________________________________]
• Charge: [_____________________________________________________]
• Court and case number: [______________________________________]
• Disposition and date: [_______________________________________]
• Reason for dismissal: [_______________________________________]

There is no filing fee or cost for an action under § 61-11-25. If the court
sets a hearing, the court notifies the prosecuting attorney and arresting
agency and gives them an opportunity to respond.

4. Conviction pathway — §§ 61-11-26 and 61-11-26a

A. Waiting period

Standard track

☐ Single misdemeanor: one year after the latest of conviction, completion of
incarceration, or completion of supervision.

☐ Multiple misdemeanors: two years after the latest of the last conviction,
incarceration for the last conviction, or supervision for the last
conviction.

☐ Eligible nonviolent felony or same-transaction felony group: five years
after the latest of conviction, incarceration, or supervision.

Accelerated track

The petitioner must otherwise qualify under § 61-11-26 and either have a
medically documented substance-abuse history plus successful compliance with
a treatment or recovery and counseling program approved by the Secretary of
the Department of Health, or graduate from an approved job-readiness adult
training course.

☐ 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 of last conviction,
incarceration, or supervision.

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

B. Exclusion screen

Review every category in § 61-11-26(c). The list includes violent felonies,
felonies with minor victims, specified sex and domestic-violence offenses,
deadly-weapon offenses, DUI, specified license and commercial-driver
offenses, stalking, specified animal-cruelty offenses, dwelling burglary,
sexually motivated convictions, and specified conspiracies or attempts.

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

C. Required petition content

• Current name and every prior legal name or alias: [____________________]
• Every address from offense date through petition date: [______________]
• Date of birth: [__/__/____]
• Social Security number: [____________________________________________]
• Arrest date: [__/__/____]
• Court and complaint, indictment, summons, or case number: [___________]
• Statute and offense charged and convicted: [_________________________]
• Identified victims, or statement that none exist: [__________________]

• Current or prior restitution, protection, restraining, or no-contact
  order: [____________________________________________________________]

• Disposition and sentence: [__________________________________________]

• Grounds for relief, including employment or licensure: [____________]
• Rehabilitation steps: [_____________________________________________]
• Prior expungement or similar relief in any jurisdiction: [___________]
• Supporting documents and sworn statements: [________________________]

Attach any current order prohibiting contact with a victim. A conviction
petition must be verified under oath.

5. Service and response

For a § 61-11-26 or § 61-11-26a petition, serve the petition and supporting
documents under the trial-court rules on:

☐ Superintendent of the West Virginia State Police.

☐ Prosecuting attorney for each county of conviction.

☐ Chief law-enforcement officer of the arresting agency.

☐ Superintendent, warden, or Commissioner of Corrections for any institution
where the petitioner was confined for the conviction.

☐ Circuit, magistrate, or municipal court that disposed of the charge.

The prosecuting attorney mails the petition, supporting documents, and
proposed order to identified victims. A served person or entity may oppose
within 30 days; the petitioner may reply within 30 days after service of the
opposition.

6. Burden and court action

The petitioner bears the burden by clear and convincing evidence. The showing
includes eligibility, passage of the required time, no pending charges,
consistency with public welfare, and rehabilitation and law-abiding conduct.

Within 60 days after filing, the circuit court must grant, return for missing
information or obvious errors, set a hearing, or summarily deny the petition.

7. Fees

For a conviction petition:

• the circuit clerk collects the civil-action filing fee in advance; the
  current amount under § 59-1-11(a)(1) is $200, plus any applicable service
  or copy charges; and

• after an expungement order under § 61-11-26, the person pays $100 to the
  State Police records division for processing.

Section 61-11-26a waives the $100 State Police processing fee. It does not
waive the circuit-court filing fee. Section 61-11-25 nonconviction petitions
have no filing fee or assessed costs.

8. Verification

STATE OF WEST VIRGINIA, COUNTY OF [COUNTY], TO-WIT:

I, [PETITIONER NAME], after making an oath or affirmation to tell the
truth, state that the facts in this petition and its attachments are true to
the best of my personal knowledge and belief.

Petitioner signature: [________________________________]

Date: [__/__/____]

Sworn or affirmed before me on [__/__/____].

Notary Public / other authorized official: [_________________________]

Commission expiration: [__/__/____]

9. Effect and follow-up

If relief is granted, the court seals its records and orders other agencies
to expunge their records. Each ordered agency must certify completion to the
court within 60 days after entry of the order.

Subject to statutory exceptions, the matter is treated as never having
occurred and generally need not be disclosed. Law-enforcement and criminal-
justice employment applicants must disclose expunged convictions, and people
required by state or federal law to obtain a criminal-history check may learn
of them.

A person may obtain relief under §§ 61-11-26 and 61-11-26a only once.

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