WEST virginia legislature
2017 regular session
for
By Senators Jeffries,
Romano, Miller, Ojeda, Woelfel, Beach, Gaunch, Facemire and Stollings
[Originating in the Committee on
A BILL to amend and
reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating to
the creation of the West Virginia Second Chance for Employment Act; defining terms; eliminating age limitations for
petitioners seeking to expunge certain misdemeanors; expanding eligibility for
criminal expungement to persons convicted of certain nonviolent felonies;
defining “nonviolent felony”; providing exclusions to eligibility; establishing
time limitations for filing a petition for expungement; creating petition
requirements and court procedure for evaluating preliminary and final orders of
expungement for nonviolent felonies; providing for preliminary orders of
expungement; requiring a five-year period under a preliminary order of
expungement for a felony before one may obtain a final order of expungement;
clarifying disclosure requirements with respect to the information sealed
pursuant to an order of expungement, including exemptions; providing standard
for inspection of sealed records; and making technical changes.
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) Eligibility for expungement. —
(1) Misdemeanors. — Subject to the limitations set forth in this
section, Any a 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, inclusive, or series of transactions 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 subdivision (1), subsection (a), section
eleven, article one, chapter fifty-nine of this code for a petition for
expungement.
(2) Nonviolent felonies. — Subject to the limitations set forth in this
section, a person convicted of a nonviolent felony offense or offenses arising
from the same transaction or series of transactions may, pursuant to this
section, petition the circuit court in which the conviction or convictions
occurred for a preliminary order of expungement of the conviction or
convictions and the records associated therewith, and subsequently a final
order of expungement of the conviction or convictions and the records
associated therewith if the conditions of this section are met.
(b) Expungement shall
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 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.
(b) Temporal requirements. —
(1) No person shall be
eligible for expungement pursuant to subdivision (1), subsection (a) of this
section until one year after completion of any sentence of incarceration or
completion of any period of supervision, whichever is later in time.
(2) No person shall be
eligible for expungement pursuant to subdivision (2), subsection (a) of this
section until three years after completion of any sentence of incarceration or
completion of any period of supervision, whichever is later in time.
(3) No person shall be
eligible for permanent expungement until five years after an order is entered
granting the petition of that person for preliminary order of expungement
pursuant to subdivision (2), subsection (a) of this section.
(c) Limitations on eligibility for expungement. — No person is eligible
for expungement of a conviction and the records associated therewith pursuant
to subsection (a) of this section for:
(1) Any felony crime of violence against the person or any
misdemeanor offense involving the intentional infliction of physical injury to
a minor;
(2) Any felony offense when the victim of the crime was a
minor;
(3) Any misdemeanor violation of the provisions of article
eight-b of this chapter where the victim was mentally or physically incapacitated
or where the petitioner was eighteen years of age or older and the victim was
twelve years of age or younger at the time the violation occurred;
(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 subsection (b) or (c), section nine, article two of this
chapter where the victim was spouse, a person seeking expungement had a child
in common or with whom the person seeking expungement ever cohabited prior to
the offense.
(6) Any conviction for driving under the influence of
alcohol or a controlled substance;
(7) Any conviction for a violation of section three,
article four, chapter seventeen-b of this code; and
(8) Any violation of section nineteen, article eight of
this chapter.
(9) 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 section
fourteen-b, article three-c of this chapter and articles eight, eight-a,
eight-c and eight-d of this chapter.
(10) A conviction for conspiracy to violate a felony set
forth in this subsection constitutes a disqualifying offense.
(c)(d) Content of
petition for expungements. — 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 courts
disposition of the matter and punishment sentence imposed, if
any;
(9) Why The
grounds for expungement is sought, such as, for, including, 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 offense or 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 for
expungement.
(d)(e) Service of
petition for expungement. — A copy of the petition, with any supporting
documentation, shall be served by petitioner pursuant to the rules of the trial
court upon the following persons or entities:
(1) The Superintendent of the State Police;
(2) the The prosecuting attorney of the
county of conviction;
(3) the The chief of police or other
executive head of the municipal police department wherein the offense was
committed;
(4) the The chief law-enforcement officer
of any other law-enforcement agency which participated in the arrest of the
petitioner;
(5) the The superintendent or warden of any
institution in which the petitioner was confined; and
(6) the The circuit court, 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 prosecuting attorney
of the county of conviction for which expungement is sought shall serve by
first class mail the petition for expungement, accompanying documentation and
any proposed expungement order to upon any identified victims.
(e)(f) Filing and
service of notice of opposition to petition for expungement. — 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; all
other state and local government agencies whose records would be affected by
the proposed expungement persons
and entities listed in subsection (e) of this section and any other
interested individual or agency that desires to oppose the expungement shall
may, 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.
(1) 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.
(2) The petitioner may file a reply to a notice of
opposition no later than ten thirty days after service of any
notice of opposition to the petition for expungement.
(f)(g) Burden of
proof. — The burden of proof
shall be on the petitioner seeking an order of expungement 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) of the provisions of this section; (2) the requisite time period
has passed since the conviction or convictions or end of the completion of any
sentence of incarceration or probation period of supervision as set
forth in subdivision (2), subsection (b) of this section; (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)(h) Court
procedure for petition for expungement. — Within sixty days of the filing of a petition for
expungement the circuit court shall:
(1) For persons eligible pursuant to subdivision
(1), subsection (a) of this section:
(A) Summarily grant the petition;
(2) (B) Set the matter for hearing; or
(3) (C) 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.
(2) For persons eligible
pursuant to subdivision (2), subsection (a) of this section:
(A) Summarily and preliminarily grant the petition
subject to the provisions of subsection (j) of this section;
(B) Set the matter for
hearing; or
(C) 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.
If the court enters a
preliminary order of expungement, it shall allow the record to remain open for
a motion for final expungement or a motion to set aside the preliminary order
of expungement.
(h)(i) Hearing on
petition for expungement. — 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
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 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 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.
(j) Preliminary and final orders of expungement for nonviolent felonies.
— If the court grants the petition for expungement pursuant to subdivision (2),
subsection (a) of this section, the court’s order shall be preliminary and
subject to a motion by the petitioner to make the order a final order of
expungement.
(1) Preliminary order of expungement. — A preliminary order of expungement shall order the
sealing of all court records and other records pursuant to subsection (k) of
this section related to the nonviolent felony or felonies that are the subject
of the petition. The preliminary order of expungement is subject to the
following limitations:
(A) Notwithstanding the provisions of subsection (m) of
this section, the custodians of records subject to sealing pursuant to
subsection (k) of this section may inspect the sealed records without obtaining
an order of the court, if inspection is made for a legitimate law enforcement
purpose; and
(B) A preliminary order of expungement shall be vacated if
the petitioner is convicted of a felony or misdemeanor offense other than a
minor traffic violation subsequent to the entry of the preliminary order of
expungement.
(2) Motion for final order of expungement. — A motion for a final order of expungement for a nonviolent
felony or felonies may not be made until five years after the entry of the preliminary
order of expungement.
(A) A
motion filed under this subdivision shall be verified under oath and include
information evidencing whether the petitioner:
(i) Has any felony or
misdemeanor convictions other than a minor traffic violation since entry of the
preliminary order of expungement;
(ii) Has outstanding restitution
orders or civil judgments representing amounts ordered for restitution against
the petitioner since the entry of the preliminary order of expungement; or
(iii) Is subject of any
outstanding warrants or is currently the subject of a pending criminal
proceeding.
(B) Within ninety days
of the filing of a motion for a final order of expungement, the circuit court
shall:
(i) Summarily grant the
motion;
(ii) Set the matter for
hearing; or
(iii) Summarily deny the
petition if the court determines that the motion is insufficient or, based upon
supporting documentation and sworn statements filed in opposition to the
motion, the court determines that the petitioner, as a matter of law, is not
entitled to expungement. If the court determines that the petitioner is not
entitled to expungement as a matter of law, the court shall also vacate the
preliminary order of expungement.
(j)(k) Sealing of
records. — 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 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)(l) Disclosure
of expunged matters. —
(1) Subject to the
exceptions set forth in this section, Upon upon expungement, the proceedings in the
matter shall be deemed as a matter of law 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: Provided, That any person applying for a position in
which he or she would be engaging in the prevention, detection, investigation,
prosecution or incarceration of persons for violations of the law shall disclose
any and all convictions to his or her prospective employer regardless of
whether the conviction or convictions have been expunged pursuant to this
section.
(2) No persons for whom
an order of expungement has been entered pursuant to this section may be found
guilty of perjury or otherwise giving a false statement, under any provision of
this code, because of that person’s failure to recite or acknowledge the
arrest, indictment, information, trial or conviction: Provided, That the person is in compliance with subdivision (1) of
this subsection.
(3) Notwithstanding any
provisions of this code to the contrary, persons required by state law to
obtain a criminal history record check on a prospective employee are not
considered to have knowledge of any convictions expunged under this section.
(l)(m) Inspection
of sealed records. — 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 there is a legitimate reason for access and the interests of
justice will be served by granting a petition to inspect the sealed record, it
may be granted under the terms and conditions that the court determines.
(n) For the purposes of
this section:
(1) “Court record” means
an official record of a court about a proceeding that the clerk of the court or
other court personnel keeps. “Court record” includes an index, a docket entry,
a petition or other pleading, a memorandum, a transcription of proceedings, an
electronic recording, an order and a judgment;
(2) “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;
(3) “Seal” means to
remove information from public inspection in accordance with this section; and
(4) “Sealing” means:
(A) For a record kept in
a courthouse, removing to a separate, secure area to which persons who do not
have a legitimate reason for access are denied access;
(B) For electronic
information about a proceeding on the website maintained by the magistrate
court, circuit court or the Supreme Court of Appeals, removing the information
from the public website; and
(C) For a record
maintained by any law-enforcement agency, by removing to a separate, secure
area to which persons who do not have a legitimate reason for access are denied
access.
(o) Fees for filing petition for expungement and processing orders of
expungement. — The clerk of the circuit court shall charge and collect in
advance the same fee for a petition for expungement as is charged for
instituting a civil action pursuant to subdivision (1), subsection (a), section
eleven, article one, chapter fifty-nine of this code. Any person obtaining an
order of expungement pursuant to the provisions of this section shall pay a fee
of $50 to the records division of the West Virginia State Police to pay the
cost of processing the order of expungement.
(p) Nothing in this
section may be construed to allow a person obtaining relief pursuant to this
section to be eligible for reinstatement of any retirement or employment
benefit which he or she lost or forfeited due to the conviction or convictions
expunged.
(q) Notwithstanding any
provision of this code to the contrary, a person may only obtain the relief
afforded by the provisions of this section once.
(r) The amendment to this section during the
fourth extraordinary session of the Legislature in 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.
(r) The amendments made
to this section during the 2017 regular session of the Legislature may be known
and cited as the Second Chance for Employment Act.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.