Expungement of Criminal Records
Last updated on 05/24/2021 at 5:25 pm
NOTE: This article has been updated to include changes from a new law that went into effect on June 5, 2020. This is general information about expungements. Expungements are complicated. For information about your particular case, you should try to talk to a lawyer.
What is an expungement?
It is the legal process of asking a court to remove or “seal” something from your criminal record, meaning it cannot be seen by the public. If you meet certain criteria, the State of West Virginia allows dismissed charges and specific convictions to be removed from your record after a certain amount of time has passed and a judge approves it.
Usually people ask for expungement to help them get a job or housing.
Am I eligible for expungement?
The law on expungement is complicated. Each situation is different. And there are different expungement laws, and the requirements for each law are different.
The rules are different depending on whether you want to remove:
- Criminal charges (dismissed charges not part of a plea agreement or found not guilty after a trial); OR
- Criminal convictions (found guilty after a trial or part of a plea agreement).
This FAQ addresses both kinds of expungement.
Criminal Charges: You may be eligible for expungement of criminal charges if:
- The charges were not dismissed as part of a plea agreement to another offense; and
- You do not have a previous felony conviction; and
- You do not have any pending charges against you.
Also, if you were found not guilty because of mental illness or addiction, there are certain offenses under West Virginia’s Sex Offender Registration Act that cannot be expunged. You must wait 60 days from the date of dismissal to file.
Criminal Convictions: You may be eligible for expungement of your conviction if it involves a misdemeanor, multiple misdemeanors, a nonviolent felony, or a series of connected nonviolent felonies. Certain types of convictions are not eligible for expungement. And you are not eligible for expungement if you have pending charges.
Even if you may be eligible, there are other things to consider before filing for expungement. You should carefully read all of the information listed here to determine whether you are eligible. You should try to talk to a lawyer.
Are there certain criminal convictions that are not eligible for expungement?
Only certain state convictions are eligible for expungement. Federal convictions are not eligible.
Felony expungements are limited to non-violent felonies that meet the following rules:
- Offense does not involve the intentional infliction of serious bodily injury;
- Offense does not involve violence or potential violence to another person or the public;
- An offense the facts and circumstances of which the circuit court finds to be consistent with the purposes of the expungement statute; and
- Is not otherwise excluded.
Specific crimes (misdemeanors and felonies) that are excluded from expungement or do not qualify for expungement include but are not limited to:
- Any offenses involving use of deadly weapon or dangerous instrument
- Misdemeanors involving the intentional infliction of physical injury to a minor or law enforcement officer
- Felonies “against a person” (including murder, use of explosives and destructive devices, sexual offenses, and child abuse)
- Felonies where the victim was a minor (includes felony violations soliciting a minor via a computer, morality offenses, distributing obscene matter to minors, using minors to film sexually explicit conduct, and child abuse)
- Sexual offenses (including sexual assault and abuse)
- Domestic violence, domestic assault, domestic battery
- Abuse and neglect of an incapacitated adult
- Driving under the influence of alcohol or a controlled substance or refusing a blood alcohol content (BAC) test ** NOTE: While a DUI cannot be expunged, if the DUI conviction is at least five years old, you can still seek to expunge other eligible felony convictions, just not the DUI. This exception does not apply to any other conviction on this list.
- Driving on a suspended or revoked license
- Cruelty to animals
- Malicious assault or battery (felony)
- Misdemeanor assault or battery if the victim was a spouse, has a child in common with the person seeking expungement or if the victim ever cohabitated with the person seeking expungement prior to the offense
- Burglary of a structure regularly used as a building
- Any conviction with a written finding that the offense was sexually motivated
- Any motor vehicle offense where the person holds a commercial driver’s license, a “CDL”
- Attempt to commit an excluded felony
- Conspiracy to commit an excluded felony
As you can see, figuring out whether your conviction qualifies, may be complicated. You should try to talk to a lawyer.
If your conviction does not qualify, then the only way you can seek to remove the conviction from your record is to receive a full and unconditional pardon from the governor. Records cannot be expunged, even with a pardon, for first degree murder, treason, kidnapping, or sexual offenses. W. Va. Code § 5-1-16A(e).
When can I file?
You must wait a certain amount of time before asking for an expungement.
Criminal Charges: If you have only been charged with a crime but not convicted, you must wait 60 days before filing.
Criminal Convictions: If you have been convicted of a crime, the time period you must wait depends begins when you have finished serving a jail or prison sentence, and any term of probation or parole, whichever is later in time.
- Single misdemeanor– 1 year after conviction, completion of any sentence of incarceration, or completion of period of supervision (whichever is later in time).
- Multiple misdemeanors– 2 years after conviction, completion of any sentence of incarceration, or completion of period of supervision (whichever is later in time).
- Non-violent felony (not on the “excluded” offense list)- 5 years after conviction, completion of any sentence of incarceration, or completion of period of supervision (whichever is later in time).
Approved Substance Abuse Treatment/Adult Training Programs: You may have a shorter waiting period if you complete certain approved programs. The approved programs can be found on the West Virginia Supreme Court website.
If you have a medically documented history of substance abuse, you can shorten your wait time by completing an approved substance abuse treatment or a recovery and counseling program. You can also shorten your waiting period if you complete an approved Job Readiness Adult Training Program.
If you can provide certification of your compliance/completion of an approved program, here is how long you would have to wait to file:
- Single Misdemeanor: 90 days after successful compliance with an approved substance abuse treatment program or upon completion of an Adult Training program, but after completion of any sentence of incarceration, or completion of period of supervision (whichever is later in time).
- Multiple Misdemeanors: 1 year after the last conviction, completion of any incompletion of any sentence of incarceration, or completion of period of supervision (whichever is later in time).
- Non-Violent Felony: 3 years after the conviction, completion of any incompletion of any sentence of incarceration, or completion of period of supervision (whichever is later in time).
How do I figure out whether I am eligible?
Criminal Charges: As mentioned earlier, you are eligible if you do not have a previous felony conviction; and
- the charges against you were not dismissed because you pled guilty as part of a plea deal; or
- you were found guilty because of mental illness or addiction.
Criminal Convictions: There are two key steps you need to take to figure out whether you are eligible for expungement of your convictions:
(1) Find out what exactly is on your criminal record. In West Virginia, most of this information is not available online. You will need to know:
- The code sections and names of the offenses you were charged with; and
- The code sections and the names of the offenses you were convicted of.
If you have just one charge or conviction, or if all your charges or convictions are from one county in West Virginia, you can request a copy of your court paperwork directly from the Circuit Clerk (felonies) or Magistrate Clerk (misdemeanors) in the county where you were charged or convicted. This is a list of all court locations in West Virginia.
You may have to pay the Clerk for copies of your paperwork.
If you have multiple charges or convictions from different counties in West Virginia, you can request your criminal case information from each Circuit Clerk or Magistrate Clerk office in each county.
Or if you do not know all of your charges or convictions, you can request your criminal record report from the West Virginia State Police, through a company called IdentoGO. You will then still need to get the paperwork from the Magistrate Court or the Circuit Court.
Depending on your case, court orders or papers that you could ask for include: Indictment, Information, Complaint, Plea Agreement, Sentencing Order, or Disposition.
If there were orders for restitution, or protection or restraining orders prohibiting you from contacting a victim in your case, you will need a copy of those orders.
You also need to find out if you have paid fines and restitution related to your conviction. The Circuit Clerk or Magistrate Clerk should be able to assist you with that information too.
(2) Find out when and whether you have completed your sentence. You must know when you:
- finished your incarceration or jail time; and/or
- finished probation or parole.
The Circuit Clerk or Magistrate Clerk should be able to tell you. Sometimes you may need to call the probation office or the parole office. This is a list of West Virginia’s Chief Probation Officers in each Circuit Court. This is a list of Parole Offices.
Once you have all this information, then you can determine whether you may be eligible for expungement. You will need to review each charge or conviction separately. You will need to consider whether it is the kind of offense that is eligible. You will also need to consider whether you have waited long enough. Again, this is complicated. If you can, you should try to talk to a lawyer.
If I am eligible, is my expungement automatically approved?
Criminal Charges: No. The person filing for expungement has the burden of proving that the expungement should be approved. The Court considers whether the interests of justice are served by the granting of the expungement. W. Va. Code § 61-11-25.
Criminal Convictions: No. The person filing for expungement has the burden of proving that the expungement should be approved. In expungement cases, there is a high burden. You must be able to show the judge that:
- the convictions you are seeking to expunge are the only ones against you in the state of West Virginia;
- those convictions are not “excluded” offenses;
- the required amount of time has passed;
- you have no other criminal charges pending;
- the expungement is consistent with public welfare;
- you have evidence that your behavior since the conviction has been rehabilitated and is law-abiding; and
- show the court any other documents that may help your case.
The prosecutor, law enforcement, sentencing court, victim, or others may object to the request to expunge criminal records. It is up to the judge to decide whether to allow a record to be expunged.
How do I file?
Criminal charges: If you think you are eligible, you can file a “Motion for Expungement of Criminal Records Due to Acquittal or Dismissal for Reasons Other Than Entry of a Plea.” There is a form you can fill out to file on your own. It is also available at your local Circuit Clerk’s office.
File your motion in the Circuit Clerk’s Office in the county where your criminal case was filed.
You need to serve a copy of your motion on the Prosecuting Attorney for that county. You must be careful about taking other steps that the court asks of you. Failure to do so may result in your case being dismissed.
Criminal Convictions: If you think you are eligible, you can file a “Petition for Expungement of Criminal Records” in the Circuit Clerk’s Office in the county where your criminal case was filed. There are forms you can fill out to file on your own on the Supreme Court’s website or in the Circuit Clerk’s office in your county. One form is for misdemeanors. The other form is for felonies. You should carefully read the instructions. You must be careful about taking other steps that the court asks of you. Failure to do so may result in your case being dismissed.
After you file, these documents must be served on many people. This is an important step. The forms should list the people that need to be served. These people include:
- The Superintendent of the State Police;
- The Prosecuting Attorney of the county or counties of conviction;
- The Chief Law Enforcement Officer of the law enforcement agency that arrested you;
- The superintendent, warden, or Commissioner of Corrections of the jail or prison where you were confined; and
- The circuit court, magistrate court or municipal court where your case was handled.
Does it cost money to file?
Criminal charges: No, there is not a filing fee or cost for filing.
Criminal convictions: Yes. The filing fee is $200. If you cannot afford the filing fee, you can apply for a Fee Waiver.
If you do not qualify for a Fee Waiver, you may also have to pay money to serve the paperwork on the people and entities listed above.
If your expungement is approved, you will have to pay a $100 fee to the West Virginia State Police. This fee cannot be waived, unless you file for expungement because you have participated in an approved Substance Abuse Treatment or have completed approved Adult Training Programs. Information about the approved programs is available on the West Virginia Supreme Court website.
Also, if you still owe fees, fines, and restitution, related to your criminal case, the Court may consider that in deciding whether you should be granted an expungement. If you can, you should try to pay all fees, fines, and restitution before filing for expungement.
What happens next?
After you file, and everyone has been served, the Prosecuting Attorney serves the Petition on any identified victim. The Prosecuting Attorney, victim or other interested person can file a Notice of Opposition within 30 days. You will get a copy of a Notice of Opposition if it is filed. You will have 30 days to file a reply to the Notice of Opposition.
Within 60 days of filing the expungement, the Circuit Court must either:
- Grant the petition; OR
- Set the case for a hearing; OR
- Request more information from the person who filed or ask them to correct obvious errors; OR
- Dismiss the petition if the court determines the petition does not have all the necessary information or that the person who filed is not entitled to expungement.
Because the Circuit Court can dismiss the case without a hearing, it is very important to make sure that you are eligible before you file and that you have all the needed information filed with your petition.
Can I expunge multiple convictions?
You may be able to file to expunge multiple convictions depending on your situation.
Multiple misdemeanor convictions may be eligible for expungement. If you have multiple misdemeanor convictions in different circuit courts, you will need to file to expunge each conviction in the circuit court of the county in which the offense occurred.
Multiple felony offenses may be eligible for expungement if they occurred as part of “the same event or series of events.” Filing to expunge multiple felonies can be complex, so you may want to try to talk to a lawyer.
What if the charge or conviction is from another state?
Each state has its own laws on expungement. You can only expunge records in the state where the charge or conviction took place. The information given here only applies to West Virginia. Also, this information does not apply to federal charges or convictions.
However, if you file for expungement of a West Virginia state conviction, and you have convictions from other states, you will only have to prove to the West Virginia court that the offenses you are seeking to expunge are the only offenses in West Virginia.
What happens if expungement is granted?
All court and law enforcement records related to the criminal issue are removed from public view. After the expungement is granted, the closed files can only be opened in limited situations that must be approved by a court.
But you should know that expungement only affects records relating to law enforcement, courts, and other similar agency records. Other records like, news articles or online pictures, may still be available.
Do I need to disclose expunged offense on applications for employment, credit or housing?
In general, you do not have to disclose an expungement on an employment, credit, or other application. But there are exceptions:
You must disclose any and all convictions, including expungements, if you are applying for a position “engaging in the prevention, detection, investigation, prosecution, or incarceration of persons in violation of the law,” like a position in law enforcement.
Also, even expunged records will be available to some employers for some jobs. For example, your convictions, even if sealed, may disqualify you from a job working with children, older persons, or developmentally disabled persons.
Again, expungement only affects records relating to law enforcement, courts, and other similar agency records. Other records like, news articles or pictures, may still be available.
If you have questions about what to write on an application or what an employer may be able to see, you may want to talk to a lawyer.
Do I need a lawyer?
Expungement can be a difficult process, especially when you want to expunge a conviction. You may want to consult with a lawyer about your eligibility for expungement. You may have a lawyer represent you during the expungement process. You may also represent yourself.