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SB142 SUB1 Senate Bill 142 History

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SB142 SUB1
COMMITTEE SUBSTITUTE

FOR

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 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. 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.
(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.
(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 sealed.
(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.



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(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.)
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