House Bill No. 3128
(By Delegate Frazier)
(Originating in the Committee on the Judiciary)
[January 13, 2012]
A BILL to amend and reenact §61-11-25 of the Code of West Virginia, 1931, as amended, relating to filing a civil petition for expungement of records relating to an arrest or charges relating to the arrest when found not guilty of the offense or charges have been dismissed; and providing that no filing fees or costs be charged for processing the action.
Be it enacted by the Legislature of West Virginia:
That §61-11-25 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-25. Expungement of criminal records for those found not guilty of crimes or against whom charges have been dismissed.
(a) Any person who has been charged with a criminal offense under the laws of this state and who has been found not guilty of the offense, or against whom charges have been dismissed, and not in exchange for a guilty plea to another offense, may make a motion file a civil petition in the circuit court in which the charges were filed to expunge all records relating to the arrest, charge or other matters arising out of the arrest or charge: Provided, That no record in the Division of Motor Vehicles may be expunged by virtue of any order of expungement entered pursuant to section two-b, article five, chapter seventeen-C of this code: Provided, further, That any person who has previously been convicted of a felony may not make a motion file a petition for expungement pursuant to this section. The term records as used in this section 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 petition 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 file a petition for expungement pursuant to this section.
(c) Following the filing of the motion petition, 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 petition and provide an opportunity for a response to the expungement motion petition.
(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 petition 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. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or charge, 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) 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.
(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.
(g) There shall be no filing fees charged or costs assessed for filing an action pursuant to this section.
NOTE: The purpose of this bill is to amend the section so that a person seeking expungement of criminal records if found not guilty of the offense, or against whom charges have been dismissed, shall file a civil petition to expunge all records relating to the arrest, charge or other matters arising out of the arrest or charge.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.