What is Criminal Trespass in West Virginia?

Criminal trespass in West Virginia occurs when an individual knowingly enters or remains on another's property without authorization, invitation, or lawful permission. According to the West Virginia Code (W. Va. Code § 61-3B-2), there are two forms of criminal trespass, which are trespass in a structure and trespass on property other than a structure.

• Structure: includes a building, vehicle, or other enclosed space.
• Property other than structure or conveyance: includes open lands, yards, fields, and similar places—(W. Va. Code § 61-3B-3).

Depending on the nature of the property, the legal consequences for criminal trespass may vary, though trespass in a structure generally attracts harsher punishment. With regard to property other than structure, notice is essential in many cases. Owners may post signs, fence, cultivate, or verbally notify the individual that entry is forbidden.

In practice, criminal trespass occurs when an individual knowingly ignores posted warnings, remains after permission is revoked, or enters restricted zones despite clear notice.

How to Look Up Public Criminal Trespass Records in West Virginia

Since criminal trespass (§ 61-3B-2) is a misdemeanor, it is ordinarily tried in the Magistrate Court. Therefore, record seekers should:

• Check with the Magistrate Court Clerk of the specific county. The Magistrate court clerk can provide access to case dockets, judgments, or filings related to criminal trespass.
• Summaries of trespass cases and judgments may also be available online through the Magistrate Record Search system or the Magistrate Case Record Search portal.
• Criminal trespass appeal records may also be available on the Circuit Court page of the West Virginia Judiciary’s official website. Specific records may be sought by name, case number, or location, depending on the county’s online access policies.
• Request a Criminal History Record Check: Applicants who need certified background information can request a statewide criminal history check through the West Virginia State Police. This process typically requires valid identification, fingerprinting, and a processing fee.

Note: if a trespass record has been expunged or sealed under expungement law (such as § 61-11-25 or § 61-11-26), those records may not appear in public searches.

Types of Criminal Trespass Offenses

Although officially classified as a misdemeanor under West Virginia law, criminal trespass may be charged as a felony under certain circumstances. This depends largely on the level of intrusion and other factors present at the time of commission—some of which may serve to escalate or mitigate the charge. Felony trespass typically arises where the trespasser intends to commit another crime, including burglary, assault, or larceny.

West Virginia law further divides trespass into different subcategories, depending on the location:

Every act of trespass under Virginia law (Chapter 61, Article 3B) is treated criminally or as a type of crime rather than as a mere civil offense.

Penalties for Criminal Trespass in West Virginia.

Penalties for criminal trespass in West Virginia depend on the offense type and its severity. Under W. Va. Code § 61-3B-2, trespassing in a structure or vehicle can prompt fines up to $100, and/or jail time of up to six months. Where the offender intended bodily harm, penalties may increase to $1,000 in fines and one year in jail.

For open or non-structured property under W. Va. Code § 61-3B-3, a first offense may result in fines up to $100, while damaging property or ignoring orders to leave can attract $500 in fines or six months in jail. Armed trespass carries the same enhanced penalties.

In all cases, aggravating factors such as intent to harm or repeated violations can increase the severity of punishment under Chapter 61, Article 3B.

Can You Be Arrested for Criminal Trespass in West Virginia?

Yes. In West Virginia, criminal trespass is an arrestable offense under state law. Law enforcement officers may arrest an individual caught in the act of trespassing, particularly if:

• The individual refuses to depart when given notice,
• There is verifiable evidence (surveillance footage, credible witnesses, or property owner statements),
• The trespass is tied to other offenses (vandalism, theft, damage).

Even if the trespass occurs after hours or in a restricted area, officers may act based on probable cause and available evidence.

How Criminal Trespass Differs from Burglary or Breaking and Entering in West Virginia.

Although designated as a distinct crime, distinguishing criminal trespass from other crimes such as burglary and breaking and entering may pose some difficulties. This is due to the fact that these offenses share similar characteristics and may be proved with the same set of elements, though with a few nuances. In any event, each is defined by intent and degree of intrusion:

• Trespass: Occurs when an individual unlawfully enters, remains, or refuses to leave property without the owner’s permission.
• Burglary: Defined under W. Va. Code § 61-3-11, burglary involves breaking into a dwelling or structure with the intent to commit a crime inside of it, such as theft or assault. It is classified as a felony and carries severe penalties.
• Breaking and Entering: To use force, fraud, or deception to gain unauthorized access. It is typically treated as an element that elevates a trespass or burglary charge.

Can a Criminal Trespass Charge Be Dismissed or Reduced in West Virginia?

Yes, prosecutors often have discretion to dismiss, reduce, or offer plea bargains in criminal trespass cases, particularly when the offense is a minor one or the applicant is a first-time offender. Depending on the circumstances and the county’s local practices, individuals may be eligible for alternative resolutions such as:

• Diversion programs
• Deferred adjudication
• Plea to a lesser offense
• Community service or restitution in lieu of conviction

If an individual successfully completes a diversion or deferred adjudication program, the charges may be dismissed. Once dismissed, the applicant may qualify to expunge the record under West Virginia Code § 61-11-25, which allows for the removal of certain criminal charges and arrests from public record.

For individuals convicted of trespass, expungement may still be possible under West Virginia Code § 61-11-26 or § 61-11-26a. These sections outline the eligibility and waiting periods for clearing misdemeanor and felony records. Applicants must meet specific criteria, such as the passage of time since conviction, successful completion of all sentencing terms, and no new offenses.

Will a West Virginia Criminal Trespass Charge Stay on Your Record?

A criminal trespass conviction in West Virginia, once registered, typically becomes part of an individual’s permanent criminal record, visible to employers, landlords, and background check services. However, several legal remedies exist for eligible applicants to clear or seal their trespass records, depending on the case outcome.

• If the charge was dismissed, or the individual successfully completed deferred adjudication or a diversion program, they may petition to expunge the record under W. Va. Code § 61-11-25. This law permits applicants to file a civil petition no sooner than 60 days after the dismissal or acquittal and waives filing fees.
• If the individual is convicted, they may seek to seal or expunge the record under W. Va. Code § 61-11-26 or apply for enhanced relief under W. Va. Code § 61-11-26a if the offense qualifies. These sections generally apply to nonviolent misdemeanors or certain nonviolent felonies after a designated waiting period.

Once a record is expunged or sealed, public agencies treat it as if it never existed, and the subject is typically not required to disclose the case in most contexts except for certain positions involving law enforcement, education, or public safety.

Expungement or Record Sealing Options in West Virginia.

West Virginia law authorizes both expungement (for dismissed or acquitted cases) and record sealing or expungement for certain convictions under limited circumstances.

• Expungement under § 61-11-25: Individuals whose charges were dismissed, acquitted, or who completed diversion or deferred adjudication may file a petition in circuit court at least 60 days after dismissal to expunge all records of the arrest or charge. No filing fee applies. However, applicants with prior felony convictions are ineligible under this statute.
• Sealing or expungement of convictions under § 61-11-26: Applicants convicted of eligible misdemeanors or nonviolent felonies may petition for record expungement after meeting statutory waiting periods and other requirements. Offenses involving violence, weapons, or crimes against minors are excluded.
• Enhanced relief under § 61-11-26a: This provision allows earlier expungement eligibility for individuals who have completed substance abuse recovery or job readiness programs, provided their offenses are nonviolent.

Waiting Periods

• Misdemeanors: One (1) year after completion of sentence or probation; two (2) years if multiple misdemeanors.
• Nonviolent felonies: Five (5) years after completion of sentence, parole, or supervision.

To file for expungement in West Virginia, applicants must submit a petition to the circuit court where the trespass charge or conviction occurred, as required under W. Va. Code § 61-11-25 and § 61-11-26.

The petition must include:

• Personal details: Full name, date of birth, address, and ID number.
• Case information: Court name, case number, charge, arrest date, and statute violated.
• Eligibility statement: Proof of completed sentence, no pending charges, and no disqualifying felonies.
• Attachments: Certified court documents and program completion certificates (if applicable).
• Fee: $100 payable to the West Virginia State Police for conviction expungements.

Once filed and approved, the court orders all agencies to seal or remove the record within 60 days.