It is the intent of the Legislature to establish a procedure to provide for the reduction of certain criminal offenses after imposition of penalties, and demonstration of reform and subsequent adherence to law for an extended period of time. In enacting this article, it is also the Legislature’s intent to improve employment opportunities for reformed, law-abiding persons, while still providing for public notice of prior convictions. In establishing the provisions herein, it is the Legislature’s intent that the petitioner seeking reduction demonstrate adherence and conformity to law, and has exhibited behavior reflective of being a productive member of the community.

§61-11B-2. Definitions

(a) As used in this article, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:

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

(2) “Drug-related criminal offense” means a conviction in which the Court has made an express finding that the offense directly or indirectly related to the abuse of, or in furtherance of an addiction for, a controlled substance in violation of law.

(3) “Excluded offense” means:

(A) An offense which involves the infliction of serious physical injury;

(B) A sexual offense, including, but not limited to, a violation of the felony provisions of article eight-b, eight-c, and eight-d of this chapter;

(D) A felony violation of the provisions of section nine, article two of this chapter;

(E) A felony violation of the provisions of section twenty-eight, article two of this chapter

(F) A felony violation of article four, chapter seventeen-b of this code; or

(G) A felony, the facts and circumstances of which the Court finds to be inconsistent with the purposes of this article.

(4) “Non-violent drug-related felony offense” means a conviction in the State of West Virginia for a violation of a provision of chapter sixty-a, or a drug-related criminal offense, that is felonious in nature, and in which the court makes an express finding that: (i) the underlying offense did not involve violence or potential violence to another person or the public, and (ii) is not an excluded offense as defined in subdivision (2) of this section.

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

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

(7) “Requisite time period” means ten years after completion of any sentence or period of supervision or probation, whichever is later, 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 qualifying 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 petitioner’s criminal record shall also reflect that he or she be granted legal status as is 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) Any person filing a petition pursuant to the provisions of this article shall pay the filing fee set by the provisions of subdivision (1), subsection (a), section eleven, article one, chapter fifty-nine of this code: Provided, That in addition to the fee required by the provisions of this subsection a petitioner shall pay a fee of $100 which shall be deposited into a non-appropriated special revenue account within the State Treasurer’s office to be known as the West Virginia State Police Criminal History Account, said fee to be used to offset costs to the State Police for actions to facilitate the operation of 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 offense or offenses in which petitioner was charged and of which petitioner was convicted, along with the statutory citations therefor;
            (6) The names of any victim or victims, or where there are no identifiable victims such shall be stated;
            (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;
            (9) The reasons a criminal offense reduction is sought, such as, but not limited to, employment or licensure purposes, and why it should be granted;

(10) The date upon which he or she completed any sentence or period of supervision or probation;

            (11) An express averment by the petitioner that he or she has neither committed nor been convicted of a violation of law;
            (12) The action the petitioner has taken since the time of the offenses toward personal rehabilitation, including treatment, work or other personal history that demonstrates rehabilitation;
            (13) 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
            (14) 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 West Virginia Rules of Civil Procedure 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 prosecuting attorney 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 of conviction, if the petition is filed in another circuit; any state and local government agencies the records of which 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 the West Virginia Rules of Civil Procedure. 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 to the Court 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) That the petitioner has neither committed nor been convicted of a violation of law in the preceding ten years;

(4) That petitioner has no criminal charges pending against him or her;

(5) That the criminal offense reduction is consistent with the public welfare;

(6) That petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and has remained law-abiding; and

(7) Any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for criminal offense reduction.

(h) Within one hundred eighty 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 that he or she had a felony conviction: Provided, That upon inquiry by a prospective employer or on an application for employment, credit or other type of application, he or she shall disclose the existence of the reduced misdemeanor and acknowledgement of prior conviction if asked about prior convictions or crimes.