SB152 HFIN AM D1
The Committee on Finance moved to amend the bill on page 1, following the enacting clause, by striking out the remainder of the bill in its entirety and inserting in lieu thereof the following:
“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, 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, 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 with the conviction or convictions. 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 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 with the conviction or convictions.
(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) Misdemeanor - A person is not eligible for expungement pursuant to subdivision (1), subsection (a) of this section until one year after conviction, completion of any sentence of incarceration or completion of any period of supervision, whichever is later in time.
(2) More than one misdemeanor – A person is not eligible for expungement of multiple misdemeanors pursuant to subdivision (1), subsection (a) of this section until two years after the last conviction, completion of any sentence of incarceration or completion of any period of supervision ordered for the last conviction, whichever is later in time.
(3) Non-violent felonies – A person is not eligible for expungement of a nonviolent felony pursuant to subdivision (2), subsection (a) of this section until five years after conviction, completion of any sentence of incarceration or completion of any period of supervision, whichever is later in time.
(c) Limitations on eligibility for expungement. — A person is not eligible for expungement pursuant to subsection (a) of this section for convictions of the following offenses:
(1) Any felony offense of violence against the person as defined in subdivision (2), subsection (p) of this section or any misdemeanor offense involving the intentional infliction of physical injury to a minor or law-enforcement officer;
(2) Any felony offense in which the victim of the crime was a minor as defined in subdivision (3), subsection (p) of this section;
(3) Any violation of §61-8B-1 et seq. of this code;
(4) Any offense in which the petitioner used or exhibited a deadly weapon or dangerous instrument;
(5) Any violation of §61-2-28 of this code, or any offense which violates §61-2-9(b) or §61-2-9(c) of this code in which 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 cohabited prior to the offense or a violation of §61-2-28(c) of this code;
(6) Any violation of §61-2-29 of this code;
(7) Any offense of driving under the influence of alcohol or a controlled substance;
(8) Any offense which violates §17B-4-3 of this code;
(9) Any offense which violates §61-8-12 or §61-8-19 of this code;
(10) Any violation of §61-2-9a of this code;
(11) Any violation of §61-8B-8 and 9 of this code;
(12) Any violation of §61-3-11 of this code
(13) Any conviction for which the sentencing judge made a written finding that the offense was sexually motivated;
(14) Any offense which violates §17E-1-13(g) of this code; and
(15) Any offense of conspiracy or attempt to commit a felony set forth in subdivisions (1) through (13), inclusive, of this subsection.
(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, Provided,
That a petition for the expungement of multiple misdemeanors shall identify and
group such information by circuit court, as applicable, from which expungement
of a particular conviction or convictions is being sought:
(1) The Petitioner’s petitioner’s
current name and all other legal names or aliases by which the petitioner
has been known at any time;
(2) All of the 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) The Petitioner’s petitioner’s date
of birth and Social Security number;
(4) The Petitioner’s 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 the petitioner was charged and of which the petitioner was convicted;
(6) The names of any victim or victims, or a statement 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,
the petitioner shall attach a copy of that order to his or her petition;
(8) The court’s disposition of the matter and punishment
sentence imposed, if any;
(9) Why The grounds on which expungement is
sought, such as, 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, by
the court of 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. — The petitioner shall serve 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 prosecuting attorney of the county of conviction;
(3) The chief of
police or other executive head of the municipal police department wherein
where the offense was committed;
(4) The chief law-enforcement officer of any other law-enforcement agency which participated in the arrest of the petitioner;
(5) The superintendent or warden of any institution in which the petitioner was confined; and
(6) 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.
(f) The
prosecutorial office that had jurisdiction over the offense or offenses for
The prosecuting attorney of the county in which expungement is sought
shall serve by first class mail the petition for expungement,
accompanying documentation, and any proposed expungement order by first
class mail to any identified victims.
(e) (g) Notice
of opposition. —
(1) 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 person
or agency that desires to oppose the expungement shall may,
within 30 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.
(2) 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.
(3) The petitioner may
file a reply to a notice of opposition no later than ten 30
days after service of any notice of opposition to the petition for expungement.
(f) (h) 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) That the conviction or convictions for which
expungement is sought are the only convictions against the petitioner
and that the conviction or convictions are not excluded from expungement by subsection
(j) the provisions 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 period of supervision as set forth in
subsection (b) of this section;
(3) That the petitioner has no criminal charges pending against him or her;
(4) That the expungement is consistent with the public welfare;
(5) That the 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 facts deemed considered
appropriate or necessary by the court to make a determination regarding the
petition for expungement.
(g) (i) Court
procedure for petition for expungement. —
Within 60 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) (j) 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 considers 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)(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 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.
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 expungement, the proceedings in the matter shall be deemed,
considered, 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 to the record 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) A person for whom an order of expungement has been entered pursuant to this section may not 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, as long as the person is in compliance with subdivision (1) of this subsection.
(3) Notwithstanding any provisions of this code to the contrary, any person required by state or federal law to obtain a criminal history record check on a prospective employee are authorized 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 grant access
under the terms and conditions determined by the court.
(n) 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 §59-1-11(a)(1) of this code. A person obtaining an order of expungement pursuant to the provisions of this section shall pay a fee of $100 to the records division of the West Virginia State Police for the cost of processing the order of expungement deposited into a special revenue account within the State Treasurer’s office to be known as the West Virginia State Police Criminal History Account.
(o) Notwithstanding any provision of this code to the contrary, a person may only obtain the relief afforded by the provisions of this section and §61-11-26a of this code once.
(p) 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 maintains. “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) “Felony crime of violence against the person” means those felony offenses set forth in §61-2-1 et seq., §61-3E-1 et seq., §61-8B-1 et seq., and §61-8D-1 et seq. of this code.
(3) “Felony offenses in which the victim was a minor” means felony violation of §61-3C-14b, §61-8-1 et seq., §61-8A-1 et seq., §61-8C-1 et seq., or §61-8D-1 et seq. of this code.
(4) “Nonviolent felony” means a felony that:
(A) Is not an offense listed in subsection (c) of this section;
(B) Is not an offense involving the intentional infliction of serious bodily injury;
(C) Is an offense the conviction of which is based on facts and circumstances of which the circuit court finds to be consistent with the purposes of this article; and
(D) Is an offense the conviction of which the circuit court finds does not involve violence or potential violence to another person or the public.
(5) “Records” do not include the records of the Governor, the Legislature, or the Secretary of State that pertain to a grant of pardon. Records that pertain to a grant of pardon are not subject to an order of expungement.
(6) “Seal” means removing information from public inspection in accordance with this section.
(7) “Sealing” means:
(A) For a record kept in a courthouse, removing the record 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 a magistrate court, circuit court, or the Supreme Court of Appeals, removing the record from the public website; and
(C) For a record maintained by any law-enforcement agency, removing the record to a separate, secure area to which persons who do not have a legitimate reason for access are denied access.
(q) Statutory construction. — 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.
(r) The enactment of this section during the 2019 regular session includes the repeal of the provisions of §61-11B-1 et seq. of this code. Any person that had a sentence reduction pursuant to the provisions of §61-11B-1 et seq. of this code may petition the court of record to have the criminal offense reduction order converted into an order of expungement. Upon verification by the court that the petitioner qualifies, the court shall enter an order of expungement of the petitioner’s conviction.
(a) Notwithstanding any provisions of §61-11-26 of this code to the contrary, any person who has been convicted of a nonviolent felony offense or multiple misdemeanors and that would be eligible for expungement pursuant to the provisions of §61-11-26 of this code and who: (1) has a medically documented history of substance abuse and successful compliance with a substance abuse treatment or recovery and counseling program approved by the Secretary of the Department of Health and Human Resources; or (2) graduates from a West Virginia Department of Education approved Job Readiness Adult Training course, or both, if applicable, may petition the circuit court or circuit courts in which the conviction or convictions occurred for expungement of the conviction or convictions and the records associated therewith as provided in §61-11-26 of this code as follows:
(1) Any person who has been convicted of a single misdemeanor that would be eligible for expungement pursuant to §61-11-26 of this code and satisfies the requirements of this section, is eligible for expungement pursuant to §61-11-26(a)(1) of this code upon successful compliance with an approved substance abuse treatment and recovery and counseling program for 90 days or upon completion of an approved Job Readiness Adult Training course, or both, if applicable, but after the completion of any sentence of incarceration or completion of any period of supervision, whichever is later in time.
(3) Any person who has been convicted of a nonviolent felony offense that would be eligible for expungement pursuant to §61-11-26 of this code and satisfies the requirements of this section, is not eligible for expungement pursuant to §61-11-26(a)(2) of this code until three years after conviction, completion of any sentence of incarceration or completion of any period of supervision, whichever is later in time.
(b) In addition to the required content of a petition for expungement as required by §61-11-26(d) of this code, any person petitioning for an expungement pursuant to the provisions of this section, shall also include the following, if applicable:
(1) Documentation of compliance with an approved treatment or recovery and counseling program; and
(2) Certificate of graduation from an approved Adult Training Job Readiness Course.
(d) The fee of $100 to the records division of the West Virginia State Police for the cost of processing the order of expungement required in §61-11-26(n) of this code is waived for petitions of expungement filed pursuant to the provisions of this section.
ARTICLE 11B. CRIMINAL OFFENSE REDUCTION.
§61-11B-1. Legislative intent.
[Repealed.]
§61-11B-2. Definitions.
[Repealed.]
§61-11B-3. Criminal offense reduction.
[Repealed.]
§61-11B-4. Petition for reduction.
[Repealed.]
§61-11B-5. Employer protections.
[Repealed.”