Felonies, Misdemeanors And Infractions in West Virginia

The West Virginia Justice system separates crime into two distinct groups: felonies and misdemeanors. In addition, the West Virginia penal code designates specific penalties for these crimes based on their seriousness.

Thus, West Virginia crimes are tried according to these categories. Along with record types, the state law sets statutes of limitations that limit when criminal cases may be brought in the state.

What Is A Felony In West Virginia?

Felonies are the most severe crimes in West Virginia. They attract a punishment of at least one year imprisonment in a state penitentiary (W. V. Ann. Code § 61–11–1). Examples of felonies include murder and the sale of marijuana.

What Are Some Examples Of Felonies In West Virginia?

Examples of felonies in West Virginia include the following:

• First- and second-degree murder,
• Rape
• Burglary
• Aggravated assault
• Motor vehicle theft
• Grand larceny
• Strangulation
• First-degree arson
• Production of child pornography
• Property theft (worth more than at least $1,000)

Can I Get A Felony Removed from a Court Record in West Virginia?

Only non-violent felonies and specific categories of violent felonies may be expunged or sealed in West Virginia (W. Va. C. §61–11–26). A person convicted of a non-violent felony may file a petition for expungement five years after:

• Completing any imprisonment sentence
• Completing the period of supervision in the county court where the conviction(s) occurred (whichever is later)

The legal waiting period for filing an expungement petition reduces to three years if a medically verifiable history of substance abuse exists. Persons eligible for such exemption may have completed any of these programs:

• A state-approved substance abuse treatment program.
• A West Virginia Department of Education-approved Job Readiness Adult Training program.

Sometimes, all these conditions may be required for a convicted individual to be eligible for an accelerated expungement.

Other categories of felonies that are eligible for expungement include:

• Felony charges that led to trial but for which a “not guilty” verdict was issued (acquittals)
• Felony criminal charges that were dismissed but not as a result of a plea bargain (W. Va. C. §61–11–25)

To expunge non-conviction records, offenders may file a petition for expungement after sixty days of record disposition. Persons convicted of a prior felony are not eligible for expungement under these conditions. A non-conviction record may not be eligible for expungement if:

• The charge was due to driving under the influence
• The dismissed charge occurred as a result of a plea bargain, or
• The acquittal occurred as a result of addiction, mental handicap, or insanity.

The court that has dismissed or acquitted the accused is legally mandated to notify him or her of the right to petition for an expungement. Under the state’s expungement law, the following are some of the felony convictions that are not eligible for expungement:

• First-degree murder
• Treason
• Kidnapping
• Felony sex crimes
• Felony crimes against a minor
• Felonies involving the use of a deadly weapon
• Domestic violence (including domestic assault and battery)
• Neglect and abuse of a disabled adult
• Aggravated assault/battery
• DUI or resisting a blood alcohol content (BAC) test

However, a person convicted of a DUI may still file a petition for an expungement for any other eligible felony after five years have elapsed. West Virginia’s expungement law only permits a convicted individual to petition for the expungement of a single felony conviction. Multiple felony convictions may be allowed if they result from the primary felony charge or conviction. They should also have no outstanding criminal charges when a petition for expungement is filed. In addition, the law also only provides for a single request for criminal records expungement under W.Va. C. §§61–11–26 and 61–11–26a.

Is Expungement The Same As Sealing Court Records In West Virginia?

Yes, expungement is the same as sealing of records in the state of West Virginia. The court orders sealing all related records after a petition for expungement has been granted. This action typically prohibits the subject records from being accessed by members of the public. Expunged records that are ordered sealed by the court include:

• Records in the custody of the courts
• Records in the custody of law enforcement
• Records in the custody of other agencies or officials

Sealed court documents may also documented instructions for the enforcement of the expungement process (W. Va. Code § 61–11–26(l))

All agencies maintaining records relating to the arrest charges conviction may confirm the execution of the expungement order within 60 days to the court. After the execution of an expungement order, everything related to the matter of the petition or preceding it shall be legally regarded as non-existent.

This implies that the court or any other agency is legally authorized to respond to any inquirer on this issue that no records exist. The subject of an expunged record is not bound by the law to provide information about the fact of the record. Even in the case of application for employment or other related matters, the subject is still not legally bound to make any reference to the expunged record.

However, it is noteworthy that some exemptions exist to this rule. (W. Va. Code § 61–11–26(l)(1)). Case in point: persons conducting a criminal history record examination backed by either state or federal law for recruitment purposes are legally permitted to know about any expunged conviction.

The court that has custody of the sealed records may, under this exemption, permit the records to be examined on the basis of:

• A filed motion by the subject of the records, or
• A petition filed by a prosecuting attorney.

Note: The attorney may affirm that the examination and likely employment of the requested records are vital to an ongoing investigation or criminal trial. The court may grant approval for access if:

• It uncovers a legitimate ground for permitting access to the records and
• The interests of justice will be served to the record request (W. Va. Code §§ 61–11–26(l)(3), (m)).

How Long Does a Felony Stay on Your Record in West Virginia?

Convictions for non-violent felonies typically stay on an individual’s criminal history record for five years from the date of their last conviction. Depending on which happens later, the offender is typically required to have completed the court-mandated sentence or diversion program before they are eligible to expunge the record.

The waiting period is three years if there is proof that the convict completed a state-approved diversion program.

A violent felony conviction, on the other hand, will stay for a lifetime except if the offender receives a total and unconditional pardon. Persons pardoned by the state governor may file a petition for expungement one year after the pardon was granted.

However, violent felony convictions for first-degree murder or felony sex offense may remain on an individual's criminal record for life (W. Va. Code § 5–1–16a (2020).)

What is a Misdemeanor in West Virginia?

In West Virginia, misdemeanors are less serious offenses than felonies. They are punishable by at most one year imprisonment and/or fine payments. Unlike felonies, persons convicted of misdemeanors are imprisoned in a county or local jail. A typical example of a misdemeanor is the possession of marijuana.

What are some examples of Misdemeanors in West Virginia?

Misdemeanor sentencing in West Virginia is done on a case-by-case basis. Some examples of misdemeanors include the following:

• Battery
• Petit Larceny
• Involuntary manslaughter
• Disorderly conduct
• Assault on a school employee
• Taunting a non-participant in a duel
• Making or issuing worthless checks
• Unlawful and deliberate trespass
• Maltreatment of animals
• Property theft (worth less than $1,000)

Can I Get a Misdemeanor Removed from a Record in West Virginia?

West Virginia’s expungement law allows the sealing or expungement of most misdemeanors. A convicted individual may file an expungement petition after fulfilling the statutory waiting period of:

• One year following the conviction and conclusion of any prison sentence/supervision period for single convictions
• Two years after the most recent conviction and prison sentence/supervision period completion for multiple convictions (W.Va.C. §61–11–26).

Offenders may file petitions for expungement in the circuit court that passed the conviction. A convicted individual may be eligible for expedited expungement under the following conditions:

• The person has a medically verifiable history of substance abuse and has successfully concluded a state-approved substance abuse treatment program, or,
• He or she has graduated from a West Virginia Department of Education-approved job readiness training course for adults.

In certain cases, both conditions may apply for the accelerated expungement to be permitted. Single misdemeanors require a ninety-day waiting period before the filing of an expungement petition. However, multiple misdemeanor convictions require a twelve-month waiting period before filing. Persons filing expungement petitions may have completed the required sentence and have no pending criminal charges or legal proceedings. (W.Va.C §§61–11–26)

A first-time drug possession offense can also be expunged under certain conditions in West Virginia. The state’s expungement law provides for the application for the erasure or sealing of a first-time drug possession offense under the following conditions:

• Successful completion of a deferred sentence that led to a dismissal or discharge
• Completion of the legal waiting period of six months from the end of the probation term
• The absence of any serious or repeated probation violations (W.Va. Code § 60A–4–407 (2020).)

The following misdemeanor crimes are ineligible for expungement:

• Misdemeanors causing intentional physical injury (to a minor or law enforcement agent)
• Misdemeanors involving the exhibition of a deadly weapon
• DUI-related misdemeanors (third-time offense)
• Stalking or harassment (W. Va. C §61–2–9a)
• Sexual crimes (W. Va. C. §61–8B–1)
• Crimes involving Domestic violence (W. Va. C. §61–2–28)
• Crimes involving cruelty to Animals (W. Va. C. §61–8–19)
• Sexual abuse in the second degree (W. Va. C. §61–8B–8)
• Sexual abuse in the third degree (W. Va. C. §61–8B–9)
• Abuse or neglect of an incapacitated adult (W. Va. C. §61–2–29)
• Driving while license suspended or revoked
• Violations against the Uniform Commercial Driver’s License Act §17E–13(g).

Can a DUI Be Expunged in West Virginia?

In West Virginia, you can only expunge first-time DUI offenses. Eligible persons are required to have fulfilled the legal requirements before filing for expungement. For instance, first-time DUI offenders may first complete the West Virginia Ignition Interlock Device (IID) Deferral Program, which involves installing IIDs for six months to qualify for expungements. (W. Va. C. §17C–5A–3A). In addition, first-time offenders may complete these requirements:

• Not have a BAC of less than 0.15%
• Not possess a commercial driver’s license (CDL) at arrest time
• Not drive or operate a commercial vehicle
• Enter a conditional guilty plea.
• Withdraw or refuse to challenge the proposed administrative license suspension.

DUI charges are dismissed once the offender has satisfactorily completed the program. The offender can then petition the court for expungement of the first-time DUI, after serving out the 12-month probation. DUI arrest information still remains visible in DMV records even though it is expunged from criminal records. Following this successful process, the individual may no longer qualify for any subsequent DUI expungement. Persons with a second DUI conviction within 10 years are not eligible for expungement.

Other DUI offenses that do not fall under this category may, however, be eligible for a full and executive pardon. After a pardon has been granted, the mandatory waiting period before applying for an expungement is:

• One year after the official date of pardon
• Five years after the official date of sentence completion

What constitutes an Infraction in West Virginia?

Infractions are regarded as the least serious class of violations in the State of West Virginia. They also attract mostly fines, which constitute the lightest of penalties upon conviction. Within the state, infractions are composed mainly of traffic violations that are neither misdemeanor traffic violations nor felony traffic violations. Traffic violations are generally offenses that contravene legally established traffic laws in the State of West Virginia. Although in the case of traffic infractions, the least grievous violations are committed.

Misdemeanor and felony traffic violations attract heavier penalties. On the other hand, ordinary traffic infractions generally fetch demerit points on an individual’s driving record and fines. Such offenses are also referred to as traffic tickets or traffic citations and are often issued by law enforcement officers when violations occur. In addition to imposed fines, other penalties attracted by traffic infractions include:

• Court fees
• Increased insurance
• Driver’s license suspension
• Driver’s license revocation

Traffic tickets and demerit point allotments are under the jurisdiction of the West Virginia Department of Transportation’s Division of Motor Vehicles (DMV). The DMV assesses demerit points based on the severity of the infraction. Individuals who accumulate too many points through repeat violations within a small time span may have their license suspended.

The same penalty also applies to those who fail to pay their fines on time. License suspensions run successively, thus implying that drivers who accumulate more demerit points while serving a current suspension will attract another suspension penalty. The demerit points assessed against an offender remain on their driving record for two years after the infraction conviction. The actual infraction conviction remains for five years. Traffic tickets generally inform the alleged offender of his or her specific violation, the penalty (fine), and the court date (if necessary). The fines indicated may also be paid in advance instead of physically appearing in court. However, this admission of guilt translates into a conviction on the offender’s driving record.

An alleged offender typically has three response options after receiving a traffic ticket:

• Attend an approved Defensive Driving Course (DDC)
• Contest the ticket
• Secure the services of a traffic lawyer.

Participating in an approved Defensive Driving Course (DDC) generally causes three points to be removed from an offender’s driving record. This results in an impending 30-day suspension being rescinded since the overall points accumulated are less than 14.

However, the offender will be required to provide proof of the approved DDC completion and a license reinstatement fee before the commencement date of the imposed suspension. It is also worth noting that the deductible three points may only be removed from the last traffic ticket issued by the DMV. Therefore, the completed DDC may not result in suspension removal if the offender has accumulated 14 or more points on their record.

What Are Some Examples Of Infractions In West Virginia?

The following are examples of traffic violations that qualify as infractions in the State of West Virginia:

• Joyriding
• Speeding
• Improper turn
• Running a red light
• Making an illegal U-turn
• Driving too close to a vehicle
• Improper passing
• Impeding traffic
• Failing to yield to traffic
• Failing to obey a highway sign or lane marking
• Failing to first stop at a red light before taking a right turn.
• Driving with a broken taillight or headlight.

Can Infractions be Expunged from a West Virginia Criminal Court Record?

Yes, infractions may be expunged from a criminal court record in West Virginia. Only petty traffic infractions and non-violent misdemeanor traffic infractions may be expunged once the specified conditions in the official expungement form are met.

Felony traffic infractions, especially those of a violent nature, are usually ineligible for expungement.

What is Deferred Adjudication in West Virginia?

Per Section § 61-11-22a of the West Virginia Code, defendants may receive a deferred adjudication if they plead guilty to specific criminal cases. A deferred adjudication allows a defendant to evade imprisonment by completing a court-mandated program. The program could include community services or fine payments to the court or concerned parties. Defendants are typically required to adhere to the conditions attached to a deferred adjudication. Note that a court may resume the case if an offender fails to adhere to the conditions.

Defendants are eligible for deferred adjudication if they are not on trial for these offenses:

• A felony crime of violence in which the victim is a member of the household or family.
• Sex-related offenses like incest and rape.
• Stalking and harassment.
• Strangulation.
• Domestic violence.
• Subsequent conviction for malicious or unlawful assault.

Note: A deferred adjudication may not exceed 2 and 3 years for misdemeanor and felony cases, respectively.

Types of Crimes Eligible for Deferred Adjudication in West Virginia

West Virginia law generally exempts severe crimes that involve violence or sexual acts from deferred adjudication. The state may also exempt crimes that pose serious risk to a person’s well-being. For instance, stalking and harassment charges are not eligible for deferred adjudication.