What is Expungement?
West Virginia offers "expungement" of adult criminal records. Expungement deletes your criminal record and restores you to the status you had before the offense. The state removes or seals the record from all official sources, so the record cannot be seen by the public. Employers, landlords, banks, and so on will not see an expunged record. Only law enforcement and judges have access.
West Virginia law allows courts to seal juvenile records. These records can be seen only by a court order.
Expungement in West Virginia is complicated. Whether you can expunge a record is controlled by the type of the offense, the disposition or result, and timing.
Who is Eligible for Expungement?
In general, you are eligible to have your record expunged if:
- The charges were dismissed; or
- You were found not guilty after trial.
You cannot have charges expunged if they were part of a plea agreement.
You may also be eligible for expungement of certain criminal convictions. The rules to expunge are different for charges and convictions.
You may be eligible to expunge criminal charges, if all of the following are true:
- The charges were not dismissed as part of a plea agreement to another offense;
- You do not have any previous felony convictions;
- You do not have any charges pending against you; and
- You have waited at least 60 days from the date your charges were dismissed.
You may be eligible to expunge a criminal conviction, if all of the following are true:
- Your conviction is for a misdemeanor, multiple misdemeanors, a nonviolent felony, or several nonviolent felonies that resulted from the same event;
- Your conviction is not excluded from expungement under West Virginia law;
- You do not have any charges pending against you; and
- You have waited one to five years from the last date of either conviction, completion of your incarceration, or completion of supervision under parole or probation to apply for expungement. One year for a misdemeanor, two years for multiple misdemeanors, or five years for a felony.
You are not eligible for expungement, even if you receive a pardon, if your conviction is for any of the following:
- First-degree murder;
- Kidnapping; or
- Sexual offenses.
If you are uncertain whether you are eligible for expungement, consult with an attorney.
What Effect Does Expungement Have?
Once a West Virginia court grants an expungement, the court orders all state agencies to expunge their records. This means law enforcement, courts, and any other state agencies that keep records. The Crime Identification Bureau (CIB) will delete or seal the expunged record and send a certified letter confirming the expungement to the court clerk's office.
Your charge, conviction, dismissal, or acquittal is erased. Once your record is expunged, you can legally deny being arrested or convicted, in most cases.
When Can I Apply for Expungement?
You can apply for expungement of a conviction only after you have completed your sentence. You must count from whatever date is the most recent such as the date of conviction, completion of sentence, completion of probation or parole, or final payment of restitution. Then you must wait for several years.
Depending on your conviction, the following waiting periods can apply:
- If you were charged but not convicted, you must wait 60 days.
- If your conviction is for a single misdemeanor, you must wait one year.
- If you were convicted of several misdemeanors, you must wait two years.
- If you were convicted of a nonviolent felony, you must wait five years.
If you complete an approved substance-abuse treatment program, recovery and counseling program, or job-readiness adult training program, you may be able to shorten your wait time to file for expungement. The program must be one that appears on the West Virginia Supreme Court website here: West Virginia Judiciary.
You must successfully complete the program and get a certificate to prove it. If you do, the waiting periods to file for expungement change as follows:
- If your conviction is for a single misdemeanor, you must wait 90 days after program completion.
- If your conviction is for multiple misdemeanors, you must wait one year.
- If your conviction is for a nonviolent felony, you must wait three years.
How Do I Apply for Expungement?
Here are the nine steps to apply for expungement:
- Get your criminal history record from the West Virginia State Police Criminal Identification Bureau (CIB).
- Complete the expungement form. To access the appropriate form, go to the circuit-court clerk in the county where your case was handled or visit the West Virginia Courts website here: West Virginia Judiciary. There are separate forms for misdemeanor convictions and felony convictions. Be sure that you get the right one online or from the clerk.
- Collect all the supporting documents, including certified copies of court papers from the clerk and copies of program or educational certificates.
- Pay the fee. You may have to pay a small fee for the court documents.
- Make copies of everything, including one complete set for yourself.
- File your petition for expungement and the supporting documents with the clerk of the court in the county where you were charged.
- Send or serve another complete petition to several people. West Virginia law requires that a petition to expunge a conviction is served on the superintendent of the state police, the prosecuting attorney, the chief of police, the warden where you were incarcerated, and the court where your case was handled. It is important that you follow all instructions to file your petition correctly. If you do not, the court will dismiss your petition.
- Pay the $200.00 fee for the petition to expunge a conviction. Acceptable forms of payment include cash, credit card, money order, or certified check. Expungement petitions for criminal charges are free.
If you cannot pay the fee, you have the right to have the fee waived. To get a fee waiver, file a "Financial Affidavit and Application." This shows you have a low income and cannot afford the fee. To access the fee waiver, visit the Legal Aid of West Virginia website here: Fee Waiver. Read about getting a fee waiver and use the links to get the application form. Complete the affidavit and application, and then file them with the clerk. The judge will decide if you qualify for a fee waiver.
- Wait. If someone objects to your expungement petition, they must file their objection within 30 days. Then you get another 30 days to respond. The court must, within 60 days, either grant the expungement, schedule a hearing, or dismiss your petition because it is incomplete or you are not eligible. Under current West Virginia law, you get only one chance to file for expungement.
If you get an expungement of a conviction, you will have to pay the CIB $100.00 to process the expungement in their records. That means the total cost to expunge a conviction is $300.00. Note, you can expunge only once.
More Information About Expungement
For instructions on how to file for expungement, visit the West Virginia courts website here: Expungement Instructions.
For helpful information about the expungement process and links to the forms, visit the Legal Aid of West Virginia website here: Expungement of Criminal Records.