H. B. 4718
(By Delegate Howard)
[Introduced February 22, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and renact §61-11-25 of the Code of West Virginia,
1931, as amended, relating to expungement of misdemeanor
criminal records generally; and providing a new procedure for
expungement.
Be it enacted by the Legislature of West Virginia:
That §61-11-25 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-25. Expungement of criminal records for those found not
guilty of crimes or against whom charges have been dismissed.
(a) Any person who has been charged with a criminal offense
under the laws of this state and who has been found not guilty of
the offense, or against whom charges have been dismissed, and not
in exchange for a guilty plea to another offense, may make a motion
in the circuit court in which the charges were filed to expunge all
records relating to the arrest, charge or other matters arising out
of the arrest or charge: Provided, That any person who has previously been convicted of a felony may not make a motion for
expungement pursuant to this section. The term records as used in
this section includes, but is not limited to, arrest records,
fingerprints, photographs, index references or other data whether
in documentary or electronic form, relating to the arrest, charge
or other matters arising out of the arrest or charge. Criminal
investigation reports and all records relating to offenses subject
to the provisions of article twelve, chapter fifteen of this code
because the person was found not guilty by reason of mental
illness, mental retardation or addiction are exempt from the
provisions of this section.
(b) The expungement motion shall be filed not sooner than
sixty days following the order of acquittal or dismissal by the
court. Any court entering an order of acquittal or dismissal shall
inform the person who has been found not guilty or against whom
charges have been dismissed of his or her rights to make a motion
for expungement pursuant to this section.
(c) 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.
(d) If the court finds that there are no current charges or
proceedings pending relating to the matter 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 charge, 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.
(e) 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.
(f) 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.
(a) Any person who has been convicted of a misdemeanor or a
violation, or a series of misdemeanors or violations arising from
a single incident, may petition the court in which he or she was
convicted for expungement of his or her misdemeanor or violation
record. The person shall be informed of the right at the time of
adjudication.
(b) The petition shall be filed no sooner than five years
after the completion of the person's sentence or five years after
the successful completion of the person's probation, whichever
occurs later.
(c) Upon the filing of a petition, the court shall set a date
for a hearing and shall notify the county prosecuting attorney;
notify the victim of the crime, if there was an identified victim;
and any other person whom the person filing the petition has reason
to believe any have relevant information related to expungement of
the record at issue. Inability to locate the victim shall not
delay the proceedings in the case or preclude the holding of a
hearing or the issuance of an order of expungement.
(d) The court shall order sealed all records in the custody of
the court and any records in the custody of any other agency or
official, including law enforcement records, if at the hearing the
court finds that:
(1) The offense was not a sex offense or an offense committed
against a child;
(2) The person had no previous felony conviction;
(3) The person had not been convicted of any other misdemeanor
or violation offense in the five years prior to the conviction
sought to be expunged;
(4) The person had not since the of the conviction sought to
be expunged been convicted of a felony, misdemeanor, or any
criminal violation;
(5) That no proceeding concerning a felony, misdemeanor, or any criminal violation is pending or has been instituted against
him or her; and,
(6) The offense sought to be expunged was an offense against
the State of West Virginia.
(e) Upon the entry, of an order to seal the records, and
payment to the circuit clerk of one hundred dollars, the
proceedings in the case shall be deemed to never have occurred; all
index references shall be deleted; the persons and the court may
properly reply that no record exists with respect to the persons
upon an inquiry in the matter; and the person whose record in
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.
(f) Copies of the order shall be sent to each agency and/or
official named within the petition for expungement.
(g) Inspection of the records included in the order may
thereafter be premitted by the court only upon petition by the
person who is the subject of the records and only to those persons
named in the petition.
(h) This section shall be deemed to be retroactive, and any
person who has been convicted of a misdemeanor prior to the first
day of July, two thousand six, may petition the court in which he
or she was convicted for expungement of the record of one
misdemeanor offense or violation or a series of misdemeanor
offenses or violations arising from a single incident, provided
that the offense was not one specified in subsection (d) and that the offense was not the precursor offense of a felony offense for
which he or she was subsequently convicted. This section shall
apply only to offenses against the State of West Virginia.
NOTE: The purpose of this bill is to establish a new
procedure for expunging misdemeanor criminal records.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
