Felonies, Misdemeanors, and Infractions in West Virginia

The West Virginia Justice system separates crime into two distinct groups: felonies and misdemeanors. The West Virginia penal code designates specific penalties to these crimes based on their seriousness. Summarily, West Virginia crimes are tried on the basis of these categories.

What is a felony in West Virginia?

Felonies are the most severe crimes in West Virginia. They attract 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?

Certain states define different categories of felonies for the purpose of sentencing. West Virginian legislation, however, defines penalties on a case-by-case basis. The following are some examples of felonies in the state of West Virginia:

• 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 certain categories of violent felonies can 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. The individual must also have successfully completed a state-approved substance abuse treatment program. Alternatively, if the individual has also graduated from 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)

For these non-conviction records, a petition for expungement must be filed after sixty days of records disposition. Persons convicted of a prior felony are, however, 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 can 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 are only permitted if they are fallouts of the primary felony charge or conviction. He or she must also have no outstanding criminal charges when a petition for expungement is filed. In addition, the law also only provides for a sole 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 for the sealing of all subject records after a petition for expungement has been granted. This action 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

Also sealed, are all the documented instructions for the enforcement of the expungement process (W. Va. Code § 61–11–26(l).)

All agencies maintaining records relating to the arrest, charge or conviction must 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 enquirer 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, credit 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))

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 filed petition by a prosecuting attorney.

The attorney must affirm that the examination and likely employment of the requested records as 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 can typically stay on an individual’s criminal history record for five years from the date of his or her last conviction. His or her period of supervision or term of sentence must also have been completed depending on which happens later.

This period can be shortened to three years if the convicted individual can certify that he or she has completed a state approved program.

A violent felony conviction, on the other hand, will stay for a lifetime except if granted a total and unconditional pardon. A convicted individual granted pardon by the West Virginia State Governor may then file a petition for expungement one year after the pardon was granted. Alternatively they can file for expungement five years after discharge from sentence.

However, violent felony convictions for first-degree murder, kidnapping, treason, or a felony sex offense will stay remain on person’s criminal record for life (W. Va. Code § 5–1–16a (2020).)

What is a Misdemeanor in West Virginia?

Misdemeanors are less serious offenses than felonies in the state of West Virginia. They are punishable by at most one-year imprisonment, a fine, or both. Unlike felonies, however, 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, the same as in felonies. 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 provides for most misdemeanors to be erased or sealed. 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)

Petitions are usually filed in the circuit court of the county where the conviction(s) occurred and it concerns all records related to the conviction(s). 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. While multiple misdemeanor convictions require a twelve-month waiting period before filing. In addition, all prison sentences/periods of supervision must have been completed. An individual who files an expungement petition must also be free of any 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 the state of 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 crimes are some of the misdemeanors that 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 incapacitated adult (W. Va. C. §61–2–29)
• Driving while license suspended or revoked
• Violations against Uniform Commercial Driver’s License Act §17E–13(g)

Can a DUI Be Expunged in West Virginia?

Only first-time DUI offenses can be expunged in the state of West Virginia. However, certain conditions must be met, since a DUI offense cannot be normally expunged or sealed. First-time DUI offenders must undergo 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).. To meet the other requirements for the deferral program approval, a true first-time DUI offender must:

• 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 not challenge the proposed administrative license suspension.

Once the offender has satisfactorily completed the program and provided proof of completion, his or her DUI charges will be dismissed. The offender can then petition the court for expungement of the first-time DUI, after serving out the 12-month probation. Although the DUI arrest records will be removed from the offender’s criminal record, it will still exist in the DMV records. Following this successful process, the individual will no longer qualify for any subsequent DUI expungement. Also, another DUI arrest within ten years will be counted as a second DUI offense by law enforcement agents.

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 typical of each category of offence. On the other hand, ordinary traffic infractions generally fetch demerit points on an individual’s driving record and fines. They are also known as traffic tickets or traffic citations because notices are often issued by law enforcement officers when violations occur. Another difference between traffic infractions, and misdemeanors and felonies is that while the former is settled in traffic courts, the other two are settled in criminal courts. 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 Division of Motor Vehicles (DMV), which is overseen by the West Virginia Department of Transport. 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 stays on his or her 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 can also be paid in advance instead of physically showing up in court. However, this is an admittance of guilt which translates into a conviction on the offender’s driving record.

Upon issuance of a traffic ticket, an alleged offender has three response options:

• 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) 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 is less than 14. However, the offender must tender proof of the approved DDC completion along with a license reinstatement fee before the commencement date of the imposed suspension. It is also noteworthy, that the deductible three points can only be removed from the last traffic ticket issued by the DMV. Therefore, the completed DDC will not lead to a suspension removal if the offender has already accumulated 14 or more points on his or her record.

A common example of traffic infractions is driving without a seatbelt.

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 tail light or headlight.

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

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

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