Adopted by House 3-6-08
SB142 H JUD AM 3-5 #1
The Committee on the Judiciary moves to amend the bill on page
two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
That §5-1-16a the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto a new section, designated §61-11-26, all to read as
follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 1. THE GOVERNOR.
§5-1-16a. Expungement of criminal record upon full and
unconditional pardon.
(a) Any person who has received a full and unconditional
pardon from the Governor, pursuant to the provisions of section
eleven, article VII of the Constitution of West Virginia and
section sixteen of this article, may petition the circuit court in
the county where the conviction was had to have the record of such
conviction expunged. The petition shall be served upon the
prosecuting attorney of the county where the petition was filed.
Any person petitioning the court for an order of expungement shall
publish a notice of the time and place that such petition will be
made, which notice shall be published as a Class I legal
advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such
publication shall be the county where the petition is filed. The
circuit court, upon verification of the act of pardon and after a
hearing to determine that good cause exists, may enter an order
directing that all public record of the petitioner's conviction be
expunged.
(b) The record expunged pursuant to the provisions of this
section may not be considered in an application to any educational
institution in this state or an application for any licensure
required by any professional organization in this state.
(c) No person shall be eligible for expungement pursuant to
this section until two one years year after having been pardoned.
(d) No person shall be eligible for expungement pursuant to
this section until twenty five years after the discharge of his or
her sentence upon the conviction for which he or she was pardoned.
(e) No person shall be eligible for expungement of a record of
conviction of first degree murder, as defined in section one,
article two, chapter sixty-one of this code; treason, as defined in
section one, article one of said chapter; kidnapping, as defined in
section fourteen-a, article two of said chapter; or any felony
defined in article eight-b of said chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-26. Expungement of certain criminal convictions;
procedures; effect.
(a)Any person convicted of a misdemeanor offense or offenses
arising from the same transaction committed while he or she was
between the ages of eighteen and twenty-six 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.
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 subsection (a)(1), section eleven, article one, chapter fifty-
nine of this code for a petition for expungement.
(b) Expungement of records shall not be available for any
conviction of an offense listed in subsection (k) 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 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 probation, 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;
(12) Documentation of the notice publication required by
subsection (d) of this section: and,
(13) Any other supporting documents, sworn statements,
affidavits or other information supporting the petiton to expunge.
(d) Any person petitioning the court for an order of expungement pursuant to the provisions of subsection (a) of this
section shall publish a notice of the time and place that such
petition is being made, which notice shall include the
petitioner's name; the time and identification of the conviction or
convictions for which petitioner seeks expungement; that
expungement is sought pursuant to section twenty-six, article
eleven, chapter sixty-one of this code; the court in which the
petition will be filed; and, the right of any individual to file a
notice of opposition to the petition in the circuit court within
ten days of the publication of notice. The notice shall be
published as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area for such publication shall be the county where
the petition is filed.
(e) 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 petitioner was confined; the magistrate court or municipal
court which disposed of 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.
(f) Upon receipt of a petition for expungement, or notice
pursuant to subsection(d)of this section, 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 petitioner was confined; the
magistrate court or municipal court which disposed of petitioner's
criminal charge; 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 or notice of the petition pursuant to subsection (d) of
this section, 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.
(h) The burden of proof shall be 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 (k) 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.
(i) 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.
(j) 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
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.
(k)No person shall be eligible for expungement of a
conviction and the records associated therewith pursuant to the
provisions of subsection (a) of this section for any violation
involving the infliction of serious physical injury; involving the
provisions of article eight-B, chapter sixty-one of this code 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 a deadly weapon or dangerous instrument; 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 conviction for driving under the influence of alcohol,
controlled substances or a conviction for a violation of section
three, article four, chapter seventeen-b of this code or section
nineteen, article eight of this chapter.
(d)
Following the filing of the motion, 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 motion and
provide an opportunity for a response to the expungement motion.
(l)(e)If the court finds that there are no current charges or proceedings pending relating to the matters for which the
expungement is sought, the court may grants the motion 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 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.
(m)(f)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.
(n)(g)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.