(1) It is the intent of the Legislature to establish a program that provides for a reduction of certain criminal offenses after imposition of penalties, and demonstration of reform and adherence to law for an extended period thereafter.

(2) It is also the intent of the Legislature to allow for public notice of prior transgressions without further penalty or diminution of employment opportunities.

§61-11B-2. Definitions

(a) As used in this article, the

(1) “Criminal offense reduction” means a reduction of a qualifying felony offense to a misdemeanor offense pursuant to this article.

(2) “Excluded Offense” means:

(A) a conviction involving:

(i) the infliction of serious physical injury;

(ii) involving a sexual offense, including specifically the provisions of article eight-b, eight-c, and eight-d of this chapter;

(iii) involving the use or exhibition of a deadly weapon or dangerous instrument;

(iv) involving a battery, assault or other provision of section none, article two of this chapter;

(v) involving a domestic battery, domestic assault, or other provisions of section twenty-eight, article two of this chapter;

(vi) 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, or

(B) any that the Court may so find based upon the facts and circumstances of the offense giving rise to the felony conviction involved in the petition filed in this .

(3) “Non-violent felony” means a conviction in the State of West Virginia for a violation of state law that is felonious in nature, and in which the court makes an express finding that the underlying offense giving rise to the petition is not (i) an excluded offense as defined in subdivision (2) of this article, and (ii) did not involve violence or potential violence to another person or the public.

(4) “Petitioner” means a person who has filed a petition seeking a criminal offense reduction under the provisions of this article.

(5) “Qualifying felony offense” means: a conviction for non-violent felony offense that is also not an excluded offense.

(6) “Requisite time period” means (1) ten years after completion of any sentence or period of supervision or probation, whichever is longer; and (2) during which time there has been no commission and conviction of violation of law by the petitioner.

§61-11B-3. Criminal Offense Reduction

(a) Subject to the limitations and procedures set forth in this article, a person convicted of a non-violent felony offense may seek a criminal offense reduction by petition to the circuit court. If granted, the person’s felony offense shall be reduced to a misdemeanor and shall be designated on all records relating to the offense as a reduced misdemeanor. The person’s criminal record shall also reflect that the person be granted legal status associated with being convicted of a misdemeanor, and the person shall not be deemed as being convicted of a felony for any legal purpose or restricton.

(b) Notwithstanding any provision of law to the contrary, the reduced misdemeanor provided for under this article may not be expunged as part of this petition or by subsequent legal proceeding or petition.

(c) There shall be no entitlement to a criminal offense reduction and the granting of the petition shall remain in the discretion of the circuit court.

§61-11B-4. Petition for reduction.

(a) A person seeking a criminal offense reduction under this article shall file with the circuit court a petition, in a form and manner set forth by the West Virginia Supreme Court of Appeals.

(b) The clerk of the Circuit Court shall charge and collect a filing fee 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: Provided, That $100 of such filing fee shall go to the West Virginia State Police to assist in the administration and review of records required under this article.

            (c) Each petition for criminal offense reduction 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 criminal offense reduction 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 a criminal offense reduction 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 criminal offense reduction, 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 reduce criminal offense

(d) 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 circuit court which disposed of the petitioner's criminal charge; the superintendent or warden of any institution in which the petitioner was confined; and all other state and local government agencies whose records would be affected by the proposed criminal offense reduction.

(e) The prosecutorial office that had jurisdiction over the offense or offenses for which reduction is sought shall serve by first class mail the petition for criminal offense reduction, accompanying documentation and any proposed criminal offense reduction order to any identified victims.

(f) Upon receipt of a petition for criminal offense reduction, 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 circuit court which disposed of the petitioner's criminal charge; all other state and local government agencies whose records would be affected by the proposed criminal offense reduction and any other interested individual or agency that desires to oppose the criminal offense reduction 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 criminal offense reduction. 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 fifteen days after service of any notice of opposition to the petition for criminal offense reduction.

(g) The burden of proof shall be on the petitioner to prove by clear and convincing evidence that:

(1) The conviction or convictions for which criminal offense reduction is sought are qualifying offenses and the only convictions against petitioner;

(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 criminal offense reduction 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 criminal offense reduction.

(h) Within ninety days of the filing of a petition for criminal offense reduction the circuit court shall:

(1) Summarily grant the petition;

(2) Set the matter for hearing; or

(3) 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 reduction.
(i) 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 criminal offense reduction with appropriate findings of fact and conclusions of law.

(j) If the court grants the petition for criminal offense reduction, it shall order any records in the custody of the court, and of any other agency or official, including law-enforcement records, to reflect reduction of the felony offense to a reduced misdemeanor. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or conviction that is ordered to reflect the criminal offense reduction in its records shall certify to the court within sixty days of the entry of the criminal offense reduction order that the required reduction has been completed. (k) Upon granting of criminal offense reduction, the person whose felony offense has been reduced under the provisions of this article 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 that he or she has a felony conviction.