Removing the Brand: Criminal Expungement in West Virginia

Mistakes should not necessarily define a person for the rest of his or her life.  West Virginia law recognizes this principle and permits, in certain circumstances, that mistakes involving criminal charges or convictions may be removed from a person’s record or otherwise reduced.

What if my charge was dismissed or if I was found not guilty?

If you were charged with a crime that was dismissed, or if you were found not guilty, so long as the dismissal was not in exchange for a plea to another crime, W.Va. Code § 61-11-25 may permit you to file a civil petition with the Circuit Court where the charge was filed to expunge “all records relating to the arrest, charge or other matters arising out of the arrest or charge….”  Nevertheless, this provision does not apply to Division of Motor Vehicle (“DMV”) records or to persons who have previously been convicted of a felony.

What if I was found guilty or pled no contest to a misdemeanor?

If you were found guilty or pled no contest to a misdemeanor offense, W.Va. Code § 61-11-26 may permit you to file a petition for expungement in limited circumstances.  Though not an exhaustive list, some requirements for expungement under W.Va. Code § 61-11-26 include:

• A conviction occurring when you were between the ages of 16 and 26;

• You had no other prior or subsequent convictions other than minor traffic violations;

• You are not the subject of an arrest or any other pending criminal proceeding; and

• One year has elapsed since your conviction and completion of your sentence.

Even then, there are limitations on the types of crimes that can be expunged.  For example: if the crime involved the infliction of serious physical injury; certain sexual-type offenses; the exhibition or use of a deadly weapon; certain domestic offenses; driving under the influence; driving while your license is suspended or revoked; or cruelty to animals, the statute precludes expungement.

What if I was found guilty or pled guilty or no contest to a felony offense?

If you were convicted of a nonviolent felony offense, the 2017 Criminal Offense Reduction Act may permit the reduction of the felony offense to a “reduced misdemeanor.”  See W.Va. Code § 61-11B-2.  A petition for reduction can be filed 10 years after the completion of any sentence.  A reduction is not permitted for offenses involving:

• The infliction of serious personal injury;

• Sexual offenses;

• An offense involving the use or exhibition of a deadly weapon or dangerous instrument;

• A malicious assault or battery;

• A felony violation related to the use of a driver’s license; or

• A felony that the Court finds inconsistent with the purpose of the Criminal Offense Reduction Act.

A successful petition under the Act will reduce the felony charge to a “reduced misdemeanor” and grant legal status associated with being convicted of a misdemeanor.  See W.Va. Code § 61-11B-3. “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.”  W. Va. Code § 61-11B-4(k).

What about a pardon from the Governor?

The West Virginia Constitution gives the Governor of West Virginia the authority to grant reprieves or pardons after conviction.   See W. Va. Constitution Art. 7, § 11; W.Va. Code § 5-1-16. Even then, a Governor’s pardon or reprieve does not automatically expunge your criminal record.  A person pardoned by the Governor must still file a petition for expungement with the Circuit Court in the county where the conviction occurred.  W.Va. Code § 5-1-16a.  A person is not eligible for expungement until one year after having been pardoned and five years after the discharge of his or her sentence.  See W.Va. Code § 5-1-16a(c) and (d).  Even then, certain offenses, such as first degree murder, treason, kidnapping, or sexual offenses may still be excluded from expungement.  W.Va. Code § 5-1-16a(e).If you would like to have a criminal charge or conviction stricken from your record or otherwise lessened to a “reduced misdemeanor,” your unique circumstances should be evaluated by a lawyer.  This blog post is meant to provide information on the general concepts of expungement and reduction and does not constitute legal advice concerning your unique circumstances.Barney Law PLLC represents clients throughout the Kanawha Valley in criminal cases and expungement proceedings.  Feel free to call us today at 304-932-8775 to discuss your unique circumstances.