Senate Bill No. 142
(By Senator Kessler)
[Originating in the Committee on the Judiciary;
reported February 21, 2008.]
A BILL to amend and reenact §5-1-16a of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §61-11-26, all relating to expungement
of certain criminal records generally; changing time frames
for petitions for expungement after gubernatorial pardons;
authorizing expungement of certain criminal convictions
committed between the ages of eighteen and twenty-six;
exceptions; and establishing procedures.
Be it enacted by the Legislature of West Virginia:
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
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
(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;
(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.
Expungement of records shall not be available for any conviction of
an offense listed in subsection (c) of this section. The relief
afforded by this subsection is only available to persons having no
other convictions other than minor traffic violations at the time
the petition is filed.
(b)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 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.
A copy of the petition shall be served upon the prosecuting attorney of the county of conviction. No person shall be eligible
for expungement pursuant to the provisions of subsection (a) of
this section until one year after the conviction or completion of
any sentence of incarceration or probation, whichever is later in
time. The burden of proof shall be on the petitioner to prove by
clear and convincing evidence that: (1) The conviction or
convictions are the only convictions against petitioner; (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; and (4) petitioner has, by his or her
behavior since the conviction or convictions, evidenced that he or
she has been rehabilitated and is law-abiding.
(c)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 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.
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.
(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 grant the motion and 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
(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.
(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 the petition, it may be granted.
(NOTE: The purpose of this bill is to allow the limited
expungement of certain criminal records for a nonviolent crime
committed by a person between the ages of eighteen and twenty-six.
Section twenty-six is new; therefore, strike-throughs and
underscoring have been omitted.)