Criminal records have a lasting impact on the lives of alleged offenders, meaning that many people with criminal records experience considerable difficulty when it comes to earning employment, obtaining certain licenses, or even finding a place to live. A criminal record can also complicate efforts to get credit or loans or gain acceptance into colleges, so the bottom line is any person who is dealing with the consequences of having a criminal record should quickly consult a Charleston expungement attorney.

Even when criminal charges end with dismissals, records of arrests remain on criminal records and are viewable by members of the public. The West Virginia Law Review notes that 92 million Americans have a criminal record, and there are over 800 collateral consequences to criminal records.

Expungement Eligibility in West Virginia

Under West Virginia Code § 61-11-26(a), eligibility for expungement applies only to misdemeanors and nonviolent felonies. A person with a conviction for a misdemeanor offense or offenses or nonviolent felony offense or offenses involving the same transaction or series of transactions can petition the circuit court in which the conviction or convictions happened for expungement of the conviction or convictions and the records associated with the conviction or convictions.

As it relates to a misdemeanor, a person will not be eligible for expungement until one year after their conviction, completion of any sentence of incarceration, or completion of any period of supervision, whichever is later. When a person has more than one misdemeanor, they are not eligible for expungement of multiple misdemeanors until two years after their last conviction, completion of any sentence of incarceration, or completion of any period of supervision relating to the last conviction, whichever is later.

For nonviolent felonies, a person will not be eligible for expungement of a nonviolent felony until five years after their conviction, completion of any sentence of incarceration, or completion of any period of supervision, whichever is later. A person is not eligible for expungement for convictions of the following offenses:

• Any misdemeanor offense that involves the intentional infliction of physical injury to a minor or law enforcement officer 
• Any offense in which the alleged offender used or exhibited a deadly weapon or dangerous instrument 
• Any DUI offense 
• Any violation of West Virginia Code § 61-2-9(b) for assault or West Virginia Code § 61-2-9(c) for battery in which an alleged victim was a spouse, a person with whom the alleged offender had a child in common, or with whom the alleged offender ever cohabited prior to an alleged offense 
• Any conviction in which a sentencing judge made a written finding that the offense was sexually motivated 
• Any violation of West Virginia Code § 61-2-9a for stalking or harassment 
• Any violation of West Virginia Code § 61-2-28 for domestic violence 
• Any violation of West Virginia Code § 61-2-29 for abuse or neglect of an incapacitated adult 
• Any offense violating West Virginia Code § 61-8-19 for cruelty to animals 
• Any violation of West Virginia Code § 61-8B-1 for sexual offenses 
• Any violation of West Virginia Code § 61-8B-8 for sexual abuse in the second degree 
• Any violation of West Virginia Code § 61-8B-9 for sexual abuse in the third degree 
• Any violation of West Virginia Code § 17B-4-3 for driving while license suspended or revoked 
• Any offense violating West Virginia Code § 17E-13(g) for the Uniform Commercial Driver’s License Act 
• Any offense involving conspiracy or attempt to commit a crime as set forth above.

Contents of Expungement Petitions

Every petition seeking expungement of a conviction or convictions must be verified under oath and include the following information: 

• A petitioner’s current name and all other legal names or aliases by which the petitioner has been known at any time
• All of a petitioner’s addresses from the date of an alleged offense in connection with which an expungement order is sought to the date of the petition
• A petitioner’s date of birth and Social Security number
• A petitioner’s date of arrest, the court of jurisdiction, and criminal complaint, indictment, summons, or case number
• The statute or statutes and the offense or offenses for which a petitioner was charged and of which a petitioner was convicted
• The names of any alleged victim or victims, or a statement that there were no identifiable victims
• Whether there is any current restraining order, order for restitution, protection, or other no contact order that prohibits the petitioner from contacting an alleged victim or whether there has ever been a prior restraining order, order for restitution or protection prohibiting the petitioner from contacting an alleged victim. When there is a current order, a petitioner must attach a copy of that order to their petition.
• The disposition of the matter and the sentence imposed, if any
• The grounds on which expungement is being sought, including, but not limited to, employment or licensure purposes
• The steps a petitioner has taken since the time of an alleged offense or offenses toward personal rehabilitation, including work, treatment, or other personal history that demonstrates rehabilitation
• Whether a petitioner has ever been granted expungement or similar relief for a criminal conviction by any court in West Virginia, the court of any other state, or any federal court
• Any supporting documents, affidavits, sworn statements, or other information that supports the petition for expungement

Petitions are available at the West Virginia Judiciary website for both felony and misdemeanor violations as well as traffic citations. You will want to be sure you are completing the right one, and a lawyer can help ensure you are taking all of the proper steps.

West Virginia Expungement Service and Filing Fees

You should fill out the caption or title portion of the Certificate of Service. Indicate the boxes next to all applicable recipients, print or type the appropriate addresses, and make as many copies of the petition and all attached documentation as will be necessary to serve all parties by the method you are indicating. You have to serve a petition and all supporting documentation to all of the following individuals or entities: 

• Superintendent of the state police
• Prosecuting attorney of the county of conviction
• Chief of police or another executive head of a municipal police department where an alleged offense occurred
• Chief law enforcement officer of any other law enforcement agency participating in an arrest
• Superintendent or warden of any institution where the alleged offender was confined
• Circuit court, magistrate court, or municipal court that disposed of the criminal charges

Under West Virginia Code § 61-11-26(e), any of the parties you serve can file a notice of opposition to the court within 30 days of service of the petition. A response to the notice of opposition can be filed 30 days after service. 

The court may grant a petition without a hearing within 60 days of the filing of a petition, set the matter for a hearing, or deny the petition. A filing fee will be collected in advance and is $200. 

Additional fees can also be required, such as, but not limited to, service and copies at the time of filing. A person who is granted expungement must also pay a fee of $100 to the West Virginia State Police records division for the cost of processing an expungement, but this fee can be waived when the petition is granted pursuant to the expedited procedure established for people with a medically documented history of substance abuse.

Call Us Today to Schedule a Free Consultation with a Charleston Violent Crimes Attorney

If you are trying to expunge a criminal record in West Virginia, do not try to handle a very complicated process on your own. Cary Law Office can work closely with you and guide you through the entire expungement process so you will be confident that you are handling everything in the exact manner that you are required to do so.

Our firm fully understands the many hardships people are facing because of their convictions or arrest records, even when their cases did not result in convictions, and we can work to make sure that your criminal history is no longer a matter of public record. Call (304) 804-6369 or contact us online to receive a free consultation so we can examine exactly what you are dealing with and how we can help.