Expungement laws vary among states. Some states are willing to expunge or seal records of some criminal convictions under certain circumstances, while others only allow expungement in instances where you were arrested but not charged.
What Are Expungement and Record Sealing?
In West Virginia, there is no distinction between record sealing and expungement. The term expungement refers to the legal process of deleting your criminal records from public access. In limited cases where expungement or record sealing is possible, you may lawfully state afterward that you have never been arrested or convicted of the expunged offense. This removes a significant obstacle when you are seeking employment, housing, credit, bonding, or when you are applying for schools or travel visas. You will still have to disclose any expunged felonies or misdemeanor convictions if you apply for a professional license, for the military, or for work in the court system or in law enforcement. However, you can also say that the offense was expunged.
Sealing Juvenile Records
West Virginia law automatically seals your juvenile records one year after your 18th birthday, or one year after the jurisdiction of the juvenile court has expired. The records are sealed in the circuit court where your case was pending, but your records may not be sealed if your offense was handled under the adult criminal jurisdiction of the applicable circuit court.
Are You Eligible?
Adults over the age of 26 may only expunge criminal records if they were either not charged or they were acquitted of the charges. The offense must have been relatively minor. For example, you may not expunge an intoxicated driving offense. You cannot receive an expungement if you have an existing felony conviction, if you pled to another offense in return for dismissing the charge, or if you were found not guilty by reason of mental illness, handicap or addiction. Other ineligible offenses include domestic violence charges, assaults resulting in serious bodily injury, sex offenses against minors 12 years of age or younger, driving without a license, or certain animal cruelty charges.
You may expunge an eligible misdemeanor conviction if it was committed when you were between the ages of 18 and 26, and if you have no prior convictions and no other pending criminal charges. You must wait one year after you have completed probation or served your sentence. First time drug offenders whose pleas were deferred and whose cases were dismissed after completion of a drug program may apply for expungement six months after completion of the program or probation. They cannot have had any serious or repeated probation violations.
The only other circumstance under which you may expunge a criminal conviction, other than for murder, is after you have been granted an executive pardon.
How Do You File?
If you are requesting an expungement pursuant to a pardon, you are required to file a petition for expungement in the circuit court where your conviction or arrest was handled. You must serve it on that county's prosecuting attorney. You must publish a notice as a Class 1 legal advertisement in a newspaper in the county where the hearing is to be held, stating the time and place where your petition will be heard.
Expunging an offense for which you were not charged or were found not guilty involves filing a petition 60 days after your order of acquittal or dismissal. The court will notify the prosecuting attorney of your motion. If you have no pending charges, the court may grant your motion.
Consult an Expungement or Record Sealing Attorney
Expungement laws are complicated and only apply to limited cases. Consult an expungement and record sealing lawyer in West Virginia for advice and to learn your legal options.