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August 13, 2020

Recent Changes in Expungement Law


Are you in need of an expungement of convictions in the state of West Virginia? Are you afraid that your out of state convictions will get in the way? In the past few years, the West Virginia legislature has reformed the way West Virginia handles expungements and has made it easier for people to get expungements of criminal convictions in the state of West Virginia. Though this was a much-needed step in the right direction, the new law brought new questions, specifically about out of state convictions and how they will affect expungement of criminal convictions in the state of West Virginia.

The expungement statute in West Virginia is contained in West Virginia Code § 61-11-26. The Burden of Proof section is contained in West Virginia Code § 61-11-26 (h) and states that the Petitioner, or the individual seeking expungement, must prove their case by clear and convincing evidence. Prior to being amended this year, West Virginia Code § 61-11-26 (h) (1) stated that the petitioner must show by clear and convincing evidence that “the conviction or convictions for which expungement is sought are the only convictions against the petitioner . . .” Inclusion of language like this made attorneys and petitioners alike question whether a petitioner with out of state convictions could qualify for expungement of West Virginia convictions if they also had convictions originating out of West Virginia.

In the 2020 Legislative Session, the West Virginia Legislature made changes to the expungement statute, particularly in West Virginia Code § 61-11-26 (h) (1) that made the language more clear and seems to allow for expungement of West Virginia convictions despite out of state convictions. The new language of West Virginia Code § 61-11-26 (h) (1) states that the petitioner must prove that “ the conviction or convictions for which expungement is sought are the only convictions for that specified offense or offenses against the petitioner in this state . . .” This new language seems to deal with the issue of other out of state convictions standing in the way of expungement of West Virginia convictions. Despite this new language, however it is important to keep in mind that the Court, when evaluating a Petition for Expungement, may look at the totality of the Petitioner’s criminal record to assess whether the expungement is consistent with the public welfare and that the petitioner has been rehabilitated and is law abiding. The Court may also look at any other facts considered appropriate or necessary by the Court to make a determination regarding the Petition for Expungement.

If you are seeking an expungement of convictions that happened in West Virginia, it is highly recommended that you seek legal guidance from an attorney to help you through the process. If you qualify for Legal Aid of West Virginia’s services, please apply for services to have your case assessed. Keep in mind that calling us does not guarantee you representation in your matter, but you will definitely gain insight into whether you qualify for expungement and whether it is right for you.


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