Read W. Va. Code § 61-11-26 when the issue is §61-11-26 Expungement of certain criminal convictions; procedures; effect. The statute says: “Subject to the limitations set forth in this section, a person convicted of a misdemeanor offense or offenses may, pursuant to the provisions of this section, petition the circuit court in which the conviction or…”
The petition and the sections next to it
West Virginia uses W. Va. Code § 61-11-26A for §61-11-26a Expungement of certain criminal convictions with approved treatment or recovery and job program. The statute says: “(a) Notwithstanding any provisions of §61-11-26 of this code to the contrary, any person who has been convicted of a nonviolent felony offense or multiple misdemeanors and that would be eligible for expungement pursuant to the provisions of §61-11-26 of this code and who: (1)…”
On expunging certain criminal records, the West Virginia text is W. Va. Code § 61-11-25. The statute says: “(a) Any person who has been charged with a criminal offense under the laws of this state and who has been found not guilty of the offense, or against whom charges have been dismissed, and not in exchange for a guilty plea to another offense resulting in a conviction, may file a…”
On §49-4-601b Substantiation by the department of abuse and neglect; file purging; expungement; exceptions, the West Virginia text is W. Va. Code § 49-4-601B. The statute says: “(a) Notwithstanding any provision of this code to the contrary, when the department substantiates an allegation of abuse and/or neglect against a person, but there is no judicial finding of abuse and/or neglect as a result of the allegation, the department shall provide written…”
When a different section applies
West Virginia uses W. Va. Code § 61-14-9 for §61-14-9 Petition to vacate and expunge conviction or juvenile delinquency adjudication of sex trafficking victim. A juvenile record uses this section rather than the adult petition. The statute says: “(a) Notwithstanding the age and criminal history limitations set forth in §61-11-26 of this code or the provisions in §49-4-103 of this code, an individual convicted of prostitution in violation of §61-8-5(b) of this code as a direct result of being a victim of trafficking, may…”
W. Va. Code § 5-1-16A deals with expunging certain criminal records. The statute says: “Governor, pursuant to the provisions of section eleven, article VII of the Constitution of West Virginia and section sixteen of this article, may petition the circuit court in the county where the conviction was had to have the record of such conviction expunged.”
What the courts have done
In Petition of B.J.B for Expungement of Record (2020) is worth reading in full. The opinion puts it this way: “The conviction is a statutory bar to expungement; the circuit court did not abuse its discretion in denying expungement for the stalking conviction.”
Before you file
- Open W. Va. Code § 61-11-26 and read the part on §61-11-26 Expungement of certain criminal convictions; procedures; effect. Everything else in the filing has to fit that section.
- Ask the clerk which local form that West Virginia county uses, then check the form against W. Va. Code § 61-11-26.
- If the person was a juvenile, move to W. Va. Code § 61-14-9 instead of forcing the case into the adult section.
- Then read In Petition of B.J.B for Expungement of Record (2020). That is a West Virginia court already applying this kind of request.
Frequently asked questions
How do you expunge a criminal record in West Virginia?
W. Va. Code § 61-11-26 deals with §61-11-26 Expungement of certain criminal convictions; procedures; effect. The statute says: “Subject to the limitations set forth in this section, a person convicted of a misdemeanor offense or offenses may, pursuant to the provisions of this section, petition the circuit court in which the conviction or…”
Does West Virginia use a different statute when the person was under eighteen?
W. Va. Code § 61-14-9 deals with §61-14-9 Petition to vacate and expunge conviction or juvenile delinquency adjudication of sex trafficking victim. A juvenile record uses this section rather than the adult petition. The statute says: “(a) Notwithstanding the age and criminal history limitations set forth in §61-11-26 of this code or the provisions in §49-4-103 of this code, an individual convicted of prostitution in violation of §61-8-5(b) of this code as a direct result of being a victim of trafficking, may…”
How have West Virginia courts ruled on expungement?
In Petition of B.J.B for Expungement of Record (2020) “The conviction is a statutory bar to expungement; the circuit court did not abuse its discretion in denying expungement for the stalking conviction.”
West Virginia clerks still control the form and the fee. W. Va. Code § 61-11-26 is the statewide rule on who may ask and what the order does.