WEST virginia Legislature
2017 regular session
By
[
to the Committee on Industry and Labor then the Judiciary.
A BILL to amend and
reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating to
allowing the expungement of certain felony convictions; setting forth the
conditions for expungement; establishing a procedure for expungement; creating
conditions; providing exceptions; and providing for procedures and for
resulting legal status.
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 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. 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
not be available for any conviction of an offense listed in subsection (i) of this
section.
(a) For the purposes of
this section, the terms "nonviolent misdemeanor" or "nonviolent felony", mean any misdemeanor or
felony except the following:
(1) Any offense involving
the infliction of serious physical injury;
(2) Any of the sex-related
or stalking offenses provided by:
(A) Section nine-a, article
two of this chapter;
(B) Section twelve, article
eight of this chapter;
(C) Section two, article
eight-a of this chapter;
(D) Section four, article
eight-a of this chapter;
(E) Section five, article
eight-a of this chapter;
(F) Section three, article
eight-b of this chapter;
(G) Section four, article
eight-b of this chapter;
(H) Section five, article
eight-b of this chapter;
(I) Section seven, article
eight-b of this chapter;
(J) Section eight, article
eight-b of this chapter;
(K) Section nine, article
eight-b of this chapter;
(L) Section ten, article
eight-b of this chapter;
(M) Section two, article
eight-c of this chapter;
(N) Section three, article
eight-c of this chapter;
(O) Section three-a,
article eight-d of this chapter;
(P) Section five, article
eight-d of this chapter; and
(Q) Section six, article
eight-d of this chapter;
(3) An offense involving
the use or exhibition of a firearm, deadly weapon or dangerous instrument;
(4) Any felony offense in
article four, chapter sixty-a of this code where the offense involves
possession with the intent to sell or deliver to a minor child;
(5) Any felony crime of
violence involving offenses contained in articles two, three-e, eight-b or
eight-d of this chapter, where the victim was a minor child;
(6) A 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; and
(7) Any violation of the
provisions of section twenty-eight, article two of this chapter.
(b)
Notwithstanding any other provision of law, any person convicted of a nonviolent
felony or nonviolent misdemeanor offense or offenses arising from the same
transaction in the same session of court, may, pursuant to 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.
(c) The relief afforded by this subsection section
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 is not the
subject of an arrest or any other pending criminal proceeding. No person
shall be 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 probation, whichever is later in time
(d) (1) A person is not
eligible for expungement of a nonviolent misdemeanor or misdemeanors until one
year after the conviction, completion of any sentence of incarceration or
probation, whichever is later in time.
(2) A person is not
eligible for expungement of a nonviolent felony or felonies until five years
after the conviction, completion of any sentence of incarceration or parole,
whichever is later in time.
(c) (e) 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) (f) 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) (g) 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; 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) (h) The burden of proof shall be 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) (a) 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) (i) Within sixty days of the filing of a
petition for expungement the circuit court shall:
(1) In the case of a
nonviolent misdemeanor:
(1) (A) Summarily grant the petition;
(2) (B) Set the matter for hearing; or
(3) (C) 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.
(2) In the case of a
nonviolent felony:
(A) Summarily and
preliminarily, grant the petition subject to subsection (l) of this section;
(B) Set the matter for
hearing pursuant to subsection (j); or
(C) 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) (j) 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
eligible for expungement of a conviction and the records associated therewith
pursuant to the provisions of subsection (a) of this section for any violation
involving the infliction of serious physical injury; involving the provisions
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 a deadly weapon or dangerous instrument; 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.
(j) (k) If the court grants the petition for
expungement, it shall order: the
(1) 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.
(2) 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
The agency
shall also reverse any administrative actions taken against a person whose
record is expunged under this section as a result of the charges or convictions
expunged. This subsection does not apply to the Department of Justice for DNA
records and samples stored in the state DNA Database and the state DNA Databank
or to fingerprint records. All orders
enforcing the expungement procedure shall also be sealed. All orders enforcing the expungement
procedure shall also be sealed.
(l) If the court grants the
petition for expungement of a nonviolent felony or felonies pursuant to
subdivision (1), subsection (i), the court's order shall be
preliminary and subject to a motion by the petitioner to make the order a final
order of expungement pursuant to subsection (m) of this section.
(1) A motion to make the
preliminary order a final order of expungement may not be made until five years
have elapsed from the granting of the preliminary order.
(2) A preliminary order
granting a petition for the expungement of a nonviolent felony shall order the
sealing of all records in the custody of the court and of any records in the
custody of any other agency or official, including law-enforcement records
related to the nonviolent felony or felonies that is the subject of the
petition.
(A) This subdivision does
not preclude access to a sealed record for a legitimate reason pursuant to
subsection (n) of this section.
(B) Within sixty days after
entry of an order under this subdivision, each custodian of court records that
are subject to the order of sealing shall advise in writing the court and the
parties of compliance with the order.
(m) A petitioner who is
granted a preliminary order pursuant to subsection (l) of this section, may
file a motion for a final order of expungement after five years have elapsed
from the granting of the preliminary order.
(1) A motion filed under
this subsection shall be verified under oath and include the following
information:
(A) Whether the petitioner
is the subject of any outstanding warrants or pending criminal cases;
(B) Whether the petitioner
has any other felony or misdemeanor convictions other than a traffic violation
since the entry of the preliminary order; and
(C) Whether the petitioner
has outstanding restitution orders or civil judgments representing amounts
ordered for restitution entered against the petitioner since the entry of the
preliminary order.
(2) The provisions of
subsections (f), (g) and (h) of this section apply to a motion filed under this
subsection.
(3) Within sixty days of
the filing of a motion for a final order of expungement, the circuit court
shall:
(A) Summarily grant the
motion;
(B) Set the matter for
hearing pursuant to subsection (j) of this section; or
(C) Summarily deny the
petition if the court determines that the motion is insufficient or, based upon
supporting documentation and sworn statements filed in opposition to the
motion, the court determines that the petitioner, as a matter of law, is not
entitled to expungement.
(k) (n) Upon expungement, the proceedings in the
matter shall be deemed are considered 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) (o)
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 there is a legitimate
reason for access and that the interests of
justice will be served by granting a petition to inspect the sealed record, it
may be granted under
the terms and conditions that the court determines. In ruling on a motion under
this subsection, the court shall balance the person's need for access to the
record with the potential harm of unwarranted adverse consequences to the
petitioner that the disclosure may create.
(p) Except when asked as a
condition of retaining or applying for employment, no person to whom an order
has been entered pursuant to this section may be held thereafter under any
provision of any law to be guilty of perjury or otherwise giving a false
statement by reason of that person's failure to recite or acknowledge the
arrest, indictment, information, trial or conviction,
(q) 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.
(r) For the purposes of
this section:
(1) "Court
record" means an official record of a court about a proceeding that the
clerk of the court or other court personnel keeps. "Court record"
includes an index, a docket entry, a petition or other pleading, a memorandum,
a transcription of proceedings, an electronic recording, an order and a
judgment.
(2) "Seal" means
to remove information from public inspection in accordance with this section.
(3) "Sealing"
means:
(A) With respect to a
record kept in a courthouse, removing to a separate secure area to which
persons who do not have a legitimate reason for access are denied access;
(B) With respect to
electronic information about a proceeding on the website maintained by the
magistrate court, circuit court or the Supreme Court of Appeals, removing the
information from the public website; and
(C) With respect to a
record maintained by any law-enforcement agency, by removing to a separate
secure area to which persons who do not have a legitimate reason for access are
denied access.
(s) As used in this
section, the term "records" does not include the records of the
Governor, the Legislature or the Secretary of State that pertain to a grant of
pardon. Those records that pertain to a grant of pardon are not subject to an
order of expungement.
(t) The amendment to this
section during the regular session of the Legislature in 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.
(u) The amendments made to
this section during the 2017 regular session of the Legislature, may be known
and cited as the "Second Chance for Employment Act."
NOTE: The purpose of this bill is
to create the Second Chance for Employment Act. The bill provides a procedure
for the expungement of certain nonviolent felony convictions and prohibits the
expungement of certain felony convictions, including those causing serious
injury, those involving deadly weapons, certain assaults and batteries,
domestic violence and sexual offenses. The bill provides that no person is
required to disclose such conviction unless asked by an employer or potential
employer.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.