Introduced Version
Senate Bill 365 History
OTHER VERSIONS -
Committee Substitute (1)
|
| Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 365
(By Senators Kessler (Mr. President), Chafin, Laird, Miller and
Stollings)
____________
[Introduced February 25, 2013; referred to the Committee
on the
Judiciary
.]
____________
A BILL to amend and reenact §61-11-26 of the Code of West Virginia,
1931, as amended, relating to the expungement of certain
criminal convictions generally; permitting expungement of
certain felony convictions; establishing the amount of time
after conviction of a felony before expungement may be sought;
and creating exceptions.
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 or felony 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 therewith with the conviction or convictions. 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 is 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 is 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 completion of any period of
supervision, whichever is later in time, and in the case of a
felony, three years after completion of any sentence of
incarceration or probation any period of supervision, 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) Any supporting documents, sworn statements, affidavits or
other information supporting the petition to expunge.
(d) 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.
(e) 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
or charges; 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,
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.
(f) The burden of proof shall be is 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) (i) 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.
(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.
(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.
(i) No person shall be is eligible for expungement of a
conviction and the records associated therewith with the conviction
pursuant to the provisions of subsection (a) of this section for:
(1) Any violation felony crime of violence against the person
or any misdemeanor offense involving the infliction of serious
physical injury;
__(2) Any felony offense when the victim of the crime was a
minor;
__involving the provisions (3) Any misdemeanor violation 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 (4) Any offense where the
petitioner used or exhibited a deadly weapon or dangerous
instrument;
(5) Any violation of section twenty-eight, article two of this
chapter or 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
(6) Any conviction for driving under the influence of alcohol
or a controlled substances substance; or a
(7) Any conviction for a violation of section three, article
four, chapter seventeen-b of this code; or and
__(8) Any violation of section nineteen, article eight of this
chapter.
__As used in this section a "felony crime of violence against
the person" means those felony offenses set forth in articles two, three-e, eight-b, eight-d, chapter sixty-one of this code and
"felony offenses where the victim was a minor" means felony
violation of articles eight, eight-a, eight-c and eight-d.
(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. 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) 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.
(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.
NOTE: The purpose of this bill is to expand the circumstances
where a person may seek to have a criminal conviction expunged. It
extends the amount of time after conviction of a felony before
expungement may be sought. It also adds crimes for which
expungement may not be sought.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.