Sealing and Expunging Criminal Records in West Virginia

The expungement law of West Virginia is established under W. Va. Code § 61–11–26. Under this law, an individual may petition a West Virginia court to seal or expunge a non-violent felony or misdemeanor, provided that the offense is eligible for removal. When a court enters an expungement order, the adult or juvenile’s criminal record is no longer accessible to the public. Parties with expunged or sealed records may not disclose this information on job applications, excluding those related to criminal justice.

The Difference Between Sealing and Expunging Criminal Records

As defined by W. Va. Code § 61–11–26p(7), the term “sealing” refers to the removal of criminal information from public inspection. In courts and law enforcement agencies, sealed records are kept in separate, secure files and may only be accessed by certain parties with good cause. Meanwhile, “expungement” refers to removing all public records and evidence that a person was charged or convicted of an offense. In West Virginia, an order of expungement seals a criminal record and removes it from public view, including law enforcement records, as if the conviction never happened.

How to Seal a Criminal Record in West Virginia

West Virginia’s statutes do not outline any specific processes for petitioning a court to seal an adult criminal record in the state. This is because the state regards an expunged record as a sealed record. However, juvenile records are generally automatically sealed a year after a juvenile comes of age (18 years old) or a year after the conclusion of personal or juvenile jurisdiction, whichever comes first (W. Va. Code § 49–5–104(a)).

What Crimes Can Be Expunged in West Virginia?

Felony and misdemeanor offenses are expungeable in West Virginia. The state’s expungement requirements are:

• Misdemeanor: At least one year after conviction and completion of sentence or probation
• Multiple misdemeanors: At least two years after the last conviction and completion of sentence or probation
• Non-violent felonies: At least five years after conviction and completion of sentence
• Dismissals and acquittals (W. Va. Code § 61–11–25)
• Victims of human trafficking (W. Va. Code § 61–14–9)
• First-time drug possession (W. Va. Code § 60A–4–407): At least six months after probation
• Full and unconditional pardons (W. Va. Code § 5–1–16a(a)): At least one year after the pardon, at least five years after completion of the sentence, and provided the conviction is not for first-degree murder, treason, kidnapping, or any felony outlined in W. Va. Code § 61–11–26(c)

Violent felony convictions and other offenses listed under West Virginia Code § 61–11–26(c) do not qualify for expungement in the state.

How to Expunge Criminal Records in West Virginia

A petition for a misdemeanor may be filed in the Circuit Court in the county of conviction with Form SCA-C906. In West Virginia, a petitioner’s expungement may be sped up (W. Va. Code §61–11–26a) if the individual has a documented medical history of substance abuse and completes a substance abuse treatment or recovery program granted by the Secretary of the Department of Health and Human Resources. Also, graduates of an approved job readiness adult training course offered by the Department of Education are entitled to early expungement.

For felony convictions, an individual may file for expungement in the applicable Circuit Court with Form SCA-C907. Early or expedited expungement is approved for the same parties as with misdemeanor convictions and indicated in W. Va. Code §61–11–26a. Although the waiting period to file for expungement for a felony is five years, this time can be expedited to three years for one felony conviction after completing a sentence or probation.

In both cases, a petitioner must not have any pending charges at the time of filing. An individual must provide every information listed under W. Va. Code § 61–11–26(d) in the petition, including:

• Legal name (s) and all known aliases
• All addresses related to the expungement
• Date of birth
• Social security number
• Offense(s) and related statutes
• Name of victims, or a statement that there were no known victims
• Reason(s) for expungement and other supporting documents (affidavits, graduation documentation (for graduates of job readiness adult training courses), documentation of charges/convictions (criminal history record), etc.)

An individual who was acquitted of a charge or had a charge dismissed may petition the court for expungement with Form SCA-C903.

It costs $200 to file a petition. After filing the petition, the petitioner must serve the petition and supporting documentation to the following parties:

• Superintendent of the State Police:
• Prosecuting attorney
• Chief of police or another head of the municipal police department where the offense took place
• Chief law-enforcement officer of any law enforcement agency that took part in the arrest
• Superintendent or warden of any incarceration institution
• Circuit court, magistrate court, or municipal court where the case was disposed

Anyone named above or a victim may file an objection within 30 days of the service. Following the expiry of these 30 days, the court may approve the petition with no hearing, deny the petition, or set a hearing date to consider the petition within 60 days. If a petition is granted, the petitioner must pay a $100 fee to the West Virginia State Police to process the expungement. Fees may be waived if the expungement was expedited due to a documented medical history of substance abuse.

Human trafficking victims may petition a Circuit Court in the county of conviction to vacate and expunge the conviction using the same procedures above or as outlined in W. Va. Code § 61–11–26. Anyone filing this petition is not required to attend rehabilitation to obtain an expungement from the court.

An expungement can be requested only once per lifetime. There is no limit indicated by the law on how many convictions can be petitioned per expungement. All forms for expungement are available on the West Virginia Courts website or through the Clerk of Court.

Do Sealed Records Show up In West Virginia Background Checks?

No. West Virginia statutes restrict sealed or expunged criminal records from appearing in background checks and advise most prospective employers not to ask for or consider this information in hiring decisions. There are legal consequences placed on any individual who fails to comply with these regulations. For instance, a person who intentionally and unlawfully violates the confidentiality of a sealed juvenile record is guilty of a misdemeanor (W. Va. Code §49–5–104). If convicted, the person is subject to a fine not exceeding $1,000, or imprisonment not above six months, or both, and a $300 fee for damages or actual damages, depending on which is greater.

Who Can See Sealed Criminal Records in West Virginia?

In West Virginia and according to W. Va. Code § 61–11–26, sealed (expunged) records may only be inspected in specific conditions with a court order. These conditions include:

• Requests by a subject of the record
• Requests by a prosecuting attorney
• If the record is required for the investigation or prosecution of a crime in or out of the state

How to Obtain Sealed Records in West Virginia

A subject of the record, prosecuting attorney, or anyone with a legitimate reason to access a sealed (expunged) record, may petition the Circuit Court to obtain the record. Under W. Va. Code § 61–11–26(h) the court, at its discretion, may grant this petition if it finds that there is a valid reason to access the records and if it is in the interests of justice.