H. B. 2838
(By Delegate Givens)
[Introduced March 13, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section twenty-five, article eleven,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to providing for
expungement of criminal charges that are dismissed.
Be it enacted by the Legislature of West Virginia:
That section twenty-five, article eleven, chapter sixty-one of
the code of West Virginia, one thousand nine hundred thirty-one, 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 criminal charge brought against a person who has been charged with a criminal offense under the laws of this state and
who which results either in a verdict of has been found not guilty
of the offense, or against whom or a dismissal 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 shall by operation of law be expunged
along with all records related to the charge, from the files of any
applicable police agency, court or other state, county or municipal
governmental agency. For the purposes of this section, "all
records" means 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 and 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. The court shall, immediately
upon a verdict of not guilty or dismissal of charges not in
exchange for a guilty plea, send an expungement order to every
agency with records relating to the arrest, charge or other matters
arising out of the arrest or charge, and the agency 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) (b) Upon expungement, the proceedings in the matter shall
be deemed 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.
(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.
NOTE: The purpose of this section is to provide for automatic
expungement of criminal charges that are dismissed.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.