WEST virginia legislature
2021 regular session
Introduced
House Bill 3188
By Delegates Walker, Pushkin, Fleischauer, Fluharty, Young, and Hansen
[Introduced March 16, 2021; Referred to the Committee on the Judiciary]
A BILL to amend and reenact §61-11-25 of the Code of West Virginia, 1931, as amended, relating to expungement of criminal records; making expungement of records for certain defendants found not guilty or have had charges dismissed to occur without petitioning the court; and allowing the prosecutor to petition the court to object because of lack of eligibility for expungement.
Be it enacted by the Legislature of West Virginia:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-25. Expungement of criminal records for those found not guilty of crimes or against whom charges have been dismissed.
(a) Any person who has been
charged with a criminal offense under the laws of this state and who has been
found not guilty of the offense, or against whom charges have been dismissed,
and not in exchange for a guilty plea to another offense, may file a civil
petition in the circuit court in which the charges were filed to expunge shall
have expunged all records relating to the arrest, charge or other matters
arising out of the arrest or charge: Provided, That no record in the
Division of Motor Vehicles may be expunged by virtue of any order of
expungement entered pursuant to §17C-5-2b of this code: Provided, further however,
That any person who has previously been convicted of a felony may does
not file a petition for qualify for an expungement pursuant to
this section. The term records as used in this section includes, but is not
limited to, arrest records, fingerprints, photographs, index references or
other data whether in documentary or electronic form, relating to the arrest,
charge or other matters arising out of the arrest or charge. Criminal
investigation reports and all records relating to offenses subject to the provisions
of §15-12-1 et seq. of this code because the person was found not guilty
by reason of mental illness, mental retardation or addiction are exempt from
the provisions of this section.
(b) The expungement
petition order shall be filed not sooner than 60 days following the
order of acquittal or dismissal by the court. Any court entering an order of
acquittal or dismissal shall inform the person who has been found not guilty or
against whom charges have been dismissed of his or her rights to file a
petition for expungement that his or her charges will be expunged pursuant
to this section: Provided, That within 30 days of the
dismissal, the prosecuting attorney and the arresting agency may notify the
court that the person is not eligible to have his or her
records expunged pursuant to this section. (c) Following the
filing of the a petition by the prosecuting attorney, the
court may set a date for a hearing. If the court does so, it shall notify the prosecuting
attorney and the arresting agency of the petition and provide an opportunity
for a response to the expungement petition person subject to the
expungement.
(d) (c) If the court finds that there are no
current charges or proceedings pending relating to the matter for which the
expungement is sought and, if a hearing is conducted upon a petition filed
by the prosecutor pursuant to subsection (a) of this section and the court
finds that the person is eligible to have his or her records expunged pursuant
to this section, the court may shall grant the petition
and 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 charge, that is
ordered to expunge records, shall certify to the court within 60 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.
(e) (d) 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.
(f) (e) 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 the petition, it may be granted.
(g) (f) There shall be no filing fees charged or
costs assessed for filing an action pursuant to this section.
NOTE: The purpose of this bill is to provide that when a defendant is found not guilty or his or her charges are dropped his or her records are automatically expunged if the defendant is otherwise qualified for expungement.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.