COMMITTEE SUBSTITUTE
FOR
H. B. 3036
(By Delegate Schoen)
(Originating in the Committee on the Judiciary)
[March 26, 2009]
A BILL to amend and reenact §61-11-26 of the Code of West Virginia,
1931, as amended, relating to notice and publication
requirements for expungement petitions.
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 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 subdivision (1), subsection (a), section eleven, article one,
chapter fifty-nine of this code for a petition for expungement.
(b) Expungement shall not be available for any conviction of
an offense listed in subsection (j) 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;
and
(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 petition 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 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 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.
(f) (e) 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 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 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.
(g) (f) 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 (j) 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.
(h) (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.
(i) (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.
(j) (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.
(k) (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 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.
(l) (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.
(m) (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.