What is an expungement?
It is the legal process of asking a court to remove something from your criminal record. In West Virginia, you may ask a court to expunge criminal charges or convictions under certain circumstances. There are different rules that apply depending on if:
- You were only charged with a crime, meaning the charges were dismissed or you were found not guilty after a trial; or
- You were convicted of a crime, because you were found guilty after a trial or you signed a plea agreement saying you were guilty.
What happens if an expungement is granted?
All records related to the criminal issue are sealed from public view. Generally, this means that you won’t have to tell bosses, landlords or banks about the criminal issue when applying for a job, housing, or credit. After the expungement is granted, the closed files can only be opened in limited situations.
What if the charge or conviction is from another state?
Each state has its own laws on expungement. You can only expunge records in the state where the charge or conviction took place.
The information given here only applies to West Virginia. For information about expungement in another state, you should contact a legal aid office in that state.
If you were only charged with a crime, can your record be expunged?
It depends. The crime may be expunged if:
- All charges against you were dismissed OR
- You were found not guilty of the charges against you.
Even if you meet these criteria, your criminal record will NOT be expunged, if:
- You were previously convicted of a felony;
- The charges against you were dismissed because you pled guilty to another offense, as part of a plea deal; or
- You were found not guilty because of mental illness, mental handicap or addiction.
Also, if the charges relate to an offense of driving under the influence, you may not be able to remove those charges from your records with the West Virginia Division of Motor Vehicles (DMV).
Finally, you must wait 60 days from the date the charges were dismissed or 60 days from the date you were found not guilty to apply for an expungement. (W.Va. Code 61-11-25).
If you were only charged with a crime, how do you file for expungement?
If you think you may qualify, you can file a “Motion for Expungement of Criminal Records Due to Acquittal or Dismissal for Reasons Other Than Entry of a Plea.” There is a form you can fill out to file on your own. You can find the form here or go to your local Circuit Clerk's office.
File your motion in the Circuit Clerk’s Office in the county where your criminal case came up. You need to serve a copy of your motion on the Prosecuting Attorney for that county. You must be careful about taking other steps that the court asks of you. Failure to do so may result in your case being dismissed.
If you are convicted of a crime, can your record be expunged?
It depends. There are many limits on qualifying for expungement of a conviction, such as the number of convictions you have, the type of conviction, and when you were convicted.
You may qualify for expungement if you meet all of these criteria:
- You were found guilty of a misdemeanor; and
- You were between the ages of 18-26 when you were found guilty; and
- This is your only conviction (other than minor traffic violations); and
- You are not the subject of a current arrest warrant or pending criminal proceeding; and
- It has been one year since your conviction and completion of your sentence or probation.
HOWEVER, even if you meet these criteria, you may not qualify for an expungement if you were convicted of one of the following offenses:
- Infliction of serious injury;
- Sexual offense when you were 18 years or older and victim was 12 years or younger;
- Use or exhibition of a dangerous weapon or deadly instrument;
- Assault or battery where the victim was your spouse, a person with whom you have children in common, or a person you lived with;
- Domestic assault or battery;
- Driving with a suspended or revoked license;
- Driving with a suspended or revoked license for driving under the influence of alcohol or drugs;
- Refusal to take a secondary chemical test of blood alcohol contents; or
- Cruelty to animals.
Also, even if you don’t meet these criteria, you may qualify for expungement of a first time drug offense or a first time offense for driving under the influence of alcohol or drugs if you complete certain treatment programs and you meet other standards. You should talk to a lawyer if you need help with these types of expungements. (W.Va. Code 17C-5-2b and W.Va. Code 60A-4-407).
If you are convicted of a crime, how do you file for expungement?
If you think you may qualify, you can file a “Petition for Expungement of Criminal Records as Provided Under W.Va. Code § 61-11-26” in the Circuit Clerk’s Office in the county where your criminal case came up. There is a form you can fill out to file on your own. You can find the form here or get it from your local Circuit Clerk's Office.These forms do not apply to cases where the conviction is for a first offense drug offense or first offense driving under the influence.
Be sure to read the instructions and follow them carefully. You must be careful about taking other steps that the court asks of you. Failure to do so may result in your case being dismissed.
Can felony convictions be expunged?
The only way to have a felony expunged is to receive a full and unconditional pardon from the governor. Records cannot be expunged, even with a pardon, for first degree murder, treason, kidnapping, or sexual offenses.
Under a new law in West Virginia, called the Second Chance Employment Act, certain felonies may be changed to a “reduced misdemeanor” through a civil court process known as Criminal Offense Reduction. Although this process does not expunge the felony, the intent of the law is to improve employment opportunities for people convicted of eligible offenses, who meet certain criteria. For more information, go here.
Do you need a lawyer?
Expungement laws can be difficult and only apply to certain cases. You may want to talk with a lawyer to see if you are able to get an expungement. You can ask a lawyer to represent you in the expungement or you can represent yourself. Instructions and forms to file a petition for expungement can be found on the West Virginia Judiciary website here.