WEST virginia legislature
2016 regular session
Introduced
Senate Bill 119
By Senators Kessler, Laird and Miller
[Introduced January 13,
2016;
Referred to the Committee on the Judiciary.]
A BILL to amend and reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating generally to expungement of certain criminal convictions; permitting expungement of certain felony convictions; establishing amount of time after felony conviction before expungement may be sought; creating exceptions; clarifying retirement or employment benefits lost due to conviction are not reinstated due to expungement; declaring expungement does not preclude person who has received expungement from being subject to sentencing enhancements for second and subsequent violations; declaring information in State Police database sufficient to prove existence of prior convictions; establishing fee to offset State Police costs associated with administering this section and the Criminal Identification Bureau; establishing special revenue account in State Treasury for funds received; and prohibiting expiration of funds.
Be it enacted by the Legislature of West Virginia:
That §61-11-26 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-26. Expungement of certain criminal convictions; procedures; effect.
(a) Any person convicted of
a misdemeanor or felony 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 with the conviction or convictions. 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
is 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 is 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 completion of any period of supervision, whichever is later in
time, and in the case of a felony, five years after completion of any
sentence of incarceration or probation any period of supervision,
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
or charges; 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 is 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) (i) 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
is eligible for expungement of a conviction and the records associated therewith
with the conviction pursuant to the provisions of subsection (a)
of this section for:
(1) Any violation felony crime of violence
against the person or any misdemeanor offense involving the infliction of
serious physical injury;
(2) Any felony offense
when the victim of the crime was a minor;
involving the provisions
(3) Any misdemeanor
violation 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
(4) Any offense where the petitioner used or exhibited a deadly weapon or dangerous instrument;
(5) Any violation of
section twenty-eight, article two of this chapter or 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
(6) Any conviction for driving under the influence of alcohol
or a controlled substances substance; or a
(7) Any conviction for a violation of section three, article
four, chapter seventeen-b of this code; or and
(8) Any violation of section nineteen, article eight of this chapter.
As used in this section, a "felony crime of violence against the person" means those felony offenses set forth in articles two, three-e, eight-b and eight-d, chapter sixty-one of this code and "felony offenses where the victim was a minor" means felony violation of articles eight, eight-a, eight-c and eight-d of this code.
(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 ninety 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.
(m) Nothing in this section may be construed to allow a person obtaining relief pursuant to this section to be eligible for any retirement or employment benefit which he or she lost or forfeited due to the conviction or convictions expunged.
(n) Notwithstanding the provisions of this section to the contrary, any person who has obtained relief pursuant to the provisions of this section who is subsequently convicted of another offense in a court of this state, another state or the United States shall be subject to any sentencing enhancement based upon having a prior conviction including, but not limited to, the provision of section eighteen, article eleven, chapter sixty-one of this code. Notwithstanding any provisions of law or rule to the contrary, should a person having received relief pursuant to this section be prosecuted or convicted of another offense subsequent to the expungement and thereby subject to a sentencing enhancement the records maintained by the West Virginia State Police pursuant to subsection (o) of this section shall constitute sufficient evidence of the prior conviction.
(o) Any court granting relief pursuant to the provisions of this section shall supply a copy of the order of expungement to the West Virginia State Police along with information identifying the petitioner and containing information regarding the offense expunged to be placed in a confidential file accessible by prosecuting attorney and judicial officers for the purpose of ensuring that relief may not be afforded pursuant to this section more than once.
(p) In addition to any fees or costs required by this code, any person filing an action pursuant to this section shall pay, upon filing, a fee of $100, which shall be transferred to the West Virginia State Police to assist in offsetting administrative costs associated with this section and the maintaining of offender registries.
(q) There is hereby created in the State Treasury a special revenue account designated the West Virginia State Police Criminal Justice Information Services Fund which shall consist of money deposited into the fund from fees collected under this section and moneys appropriated by the Legislature. Funds appropriated to the West Virginia State Police Criminal Justice Information Services Fund in accordance with this section that remain unallocated or unexpended at the end of a fiscal year do not expire, but remain in the line item to which they were originally appropriated and are available in the next fiscal year to be used for the purposes of operating and maintaining the West Virginia State Police Criminal Identification Bureau and other criminal justice information services registries operated by the State Police.
NOTE: The purpose of this bill is to permit the expungement of certain felony convictions. The bill establishes the amount of time after conviction of a felony before expungement may be sought. The bill creates exceptions. The bill clarifies that retirement or employment benefits lost due to conviction are not reinstated due to expungement. The bill declares that expungement does not preclude a person who has received an expungement from being subject to sentencing enhancements for second and subsequent violations. The bill declares that information in State Police database sufficient to prove existence of prior convictions. The bill establishes a fee to offset State Police costs associated with administering this section and the Criminal Identification Bureau. The bill establishes a special revenue account in the State Treasury for funds received.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.