Marijuana Policy Project

One of the recurring questions we receive to our office is "Can I get my criminal record expunged?". The answer is usually no, with a few exceptions. The Legislature passed a bill during the regular session that may change our response to this question.

Other than a pardon from the Governor, the current West Virginia statute which allows expungement of criminal records is limited to cases in which the charges were dismissed or the defendant was found not guilty. If the dismissal was the result of a plea bargain then the record of the charge cannot be expunged. Basically, the statute is meant to allow a person who was not guilty to have the charge completely disappear. All records that relate to the charge are destroyed or sealed by order of the Circuit Court. Under this statute, the person whose record is expunged shall not have to disclose the criminal charge or any matter relating thereto on an application for employment, credit or other type of application. West Virginia also allows a first time offender for possession of less than 15 grams of marijuana to have his or her record expunged, so long as a brief period of unsupervised probation is successfully completed.

The Legislature passed a bill that supplements the old statute by allowing a person who was convicted of a misdemeanor to petition a Circuit Court for expungement of the conviction. The distinction is that the new statute applies to a person actually convicted. However, the statute has many limitations. First, it only applies to convictions for misdemeanor crimes that were committed when the defendant was between the ages of eighteen and twenty six. Second, expungement is only available to a person having no other prior or subsequent convictions other than minor traffic violations at the time the petition is filed. The person may not petition for expungement until one year has passed from the time the person completes his or her sentence for the crime.

Importantly, there are specific offenses that cannot be expunged. The offenses not eligible for expungement include any offense involving infliction of serious physical injury; sexual offenses where the defendant was eighteen years old or older at the time the crime was committed and the victim was twelve years old or younger; an offense involving the use or exhibition of a deadly weapon or dangerous instrument; domestic violence offenses; DUI; offenses for driving on a suspended or revoked drivers license; and cruelty to animals.

The statute does not give a person the automatic right to expungement. A petition must be filed and certain requirements met which probably require the hiring of a lawyer. However, any person who had a mishap that resulted in a misdemeanor conviction when they were young and immature may now have an avenue to clear their record for good. If the bill becomes law, it will take effect this summer.