Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
        2020 REGULAR SESSION
                     Enrolled Senate Bill 562
     BY SENATORS TRUMP, STOLLINGS, WOELFEL, AND
                       FACEMIRE
 [Passed March 7, 2020; in effect 90 days from passage]
     Enr SB 562
 AN ACT to amend and reenact §61-11-26 and §61-11-26a of the Code of West Virginia, 1931, as
        amended, all relating generally to expungement of certain criminal convictions; allowing a
        person seeking expungement of convictions in multiple counties to file the petition in his
        or her county of residence; clarifying that prosecuting attorneys in any county of conviction
        wherein expungement is sought be provided notice of petition; eliminating the requirement
        that the chief law-enforcement officer or head of a municipal law-enforcement agency
        where the offense for which expungement is sought be given notice where such agency
        was not the arresting agency; modifying non-expungable offenses to allow expungement
         of burglaries of buildings which are not dwellings; allowing expungement of an unrelated
        felony if person has a conviction for driving under the influence if said driving under the
        influence conviction is at least five years old at the time the petition is filed; clarifying that
        Commissioner of Corrections be served with a copy of the petition for expungement if the
        petitioner was confined or imprisoned for the offense for which expungement is sought;
        clarifying that petitioner’s burden of proof as to convictions for which expungement is
        sought are the only convictions against him or her in the state; defining “expungement”;
        and directing that upon the granting of an order of expungement all public records other
        than those under court seal are moved and destroyed.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
     §61-11-26. Expungement of certain criminal convictions; procedures; effect.
        (a) Eligibility for expungement. —
        (1) Misdemeanors. —
        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 convictions occurred for expungement of the conviction or convictions and
 the records associated with the conviction or convictions.
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         (2) Nonviolent felonies. —
         Subject to the limitations set forth in this section, a person convicted of a nonviolent felony
 offense or offenses arising from the same transaction or series of transactions may, pursuant to
 the provisions of this section, petition the circuit court in which the conviction or convictions
 occurred for expungement of the conviction or convictions and the records associated with the
 conviction or convictions.
         (b) Temporal requirements. —
         (1) Misdemeanor. — A person is not eligible for expungement pursuant to subdivision (1),
 subsection (a) of this section until one year after conviction, completion of any sentence of
 incarceration or completion of any period of supervision, whichever is later in time.
         (2) More than one misdemeanor. — A person is not eligible for expungement of multiple
 misdemeanors pursuant to subdivision (1), subsection (a) of this section until two years after the
 last conviction, completion of any sentence of incarceration, or completion of any period of
 supervision ordered for the last conviction, whichever is later in time.
         (3) Nonviolent felonies. — A person is not eligible for expungement of a nonviolent felony
 pursuant to subdivision (2), subsection (a) of this section until five years after conviction,
 completion of any sentence of incarceration, or completion of any period of supervision, whichever
 is later in time.
         (c) Limitations on eligibility for expungement. — A person is not eligible for expungement
 pursuant to subsection (a) of this section for convictions of the following offenses:
         (1) Any felony offense of violence against the person as defined in subdivision (2),
 subsection (p) of this section or any misdemeanor offense involving the intentional infliction of
 physical injury to a minor or law-enforcement officer;
         (2) Any felony offense in which the victim of the crime was a minor as defined in
 subdivision (3), subsection (p) of this section;
         (3) Any violation of §61-8B-1 et seq. of this code;
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        (4) Any offense in which the petitioner used or exhibited a deadly weapon or dangerous
 instrument;
        (5) Any violation of §61-2-28 of this code, or any offense which violates §61-2-9(b) or §61-
 2-9(c) of this code in which the victim was a spouse, a person with whom the person seeking
 expungement had a child in common, or with whom the person seeking expungement ever
 cohabited prior to the offense or a violation of §61-2-28(c) of this code;
        (6) Any violation of §61-2-29 of this code;
        (7) Any offense of driving under the influence of alcohol or a controlled substance;
        (8) Any offense which violates §17B-4-3 of this code;
        (9) Any offense which violates §61-8-12 or §61-8-19 of this code;
        (10) Any violation of §61-2-9a of this code;
        (11) Any violation of §61-8B-8 and §61-8B-9 of this code;
        (12) Any violation of §61-3-11 of this code involving a structure regularly used as a
 dwelling;
        (13) Any conviction for which the sentencing judge made a written finding that the offense
 was sexually motivated;
        (14) Any offense which violates §17E-1-13(g) of this code; and
        (15) Any offense of conspiracy or attempt to commit a felony set forth in subdivisions (1)
 through (11) and (13), inclusive, of this subsection.
        Provided, That a conviction for driving under the influence of alcohol, controlled
 substances, or drugs shall not preclude expungement of an unrelated and otherwise expungable
 felony if the conviction for driving under the influence of alcohol, controlled substances, or drugs
 is at least five years old at the time the petition for expungement is filed.
        (d) Content of petition for expungements. — Each petition to expunge a conviction or
 convictions pursuant to this section shall be verified under oath and include the following
 information: Provided, That a petition for the expungement of multiple misdemeanors shall identify
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 and group such information by circuit court, as applicable, from which expungement of a particular
 conviction or convictions is being sought:
         (1) The petitioner’s current name and all other legal names or aliases by which the
 petitioner has been known at any time;
         (2) All of the petitioner’s addresses from the date of the offense in connection with which
 an expungement order is sought to date of the petition;
         (3) The petitioner’s date of birth and Social Security number;
         (4) The petitioner’s date of arrest, the court of jurisdiction, and criminal complaint,
 indictment, summons, or case number;
         (5) The statute or statutes and offense or offenses for which the petitioner was charged
 and of which the petitioner was convicted;
         (6) The names of any victim or victims, or a statement that there were no identifiable
 victims;
         (7) Whether there is any current order for restitution, protection, restraining order, or other
 no contact order prohibiting the petitioner from contacting the victim or whether there has ever
 been a prior order for restitution, protection, or restraining order prohibiting the petitioner from
 contacting the victim. If there is a current order, the petitioner shall attach a copy of that order to
 his or her petition;
         (8) The disposition of the matter and sentence imposed, if any;
         (9) The grounds on which expungement is sought, including, but not limited to,
 employment or licensure purposes;
         (10) The steps the petitioner has taken since the time of the offense or offenses toward
 personal rehabilitation, including treatment, work, or other personal history that demonstrates
 rehabilitation;
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          (11) Whether petitioner has ever been granted expungement or similar relief regarding a
  criminal conviction by any court in this state, by the court of any other state, or by any federal
  court; and
          (12) Any supporting documents, sworn statements, affidavits, or other information
  supporting the petition for expungement.
          (e) Service of petition for expungement. — The petitioner shall serve a copy of the petition,
  with any supporting documentation, pursuant to the rules of the trial court upon the following
  persons or entities:
          (1) The Superintendent of the State Police;
          (2) The prosecuting attorney of the county or counties of conviction;
          (3) The chief law-enforcement officer of the law-enforcement agency which arrested the
  petitioner;
          (4) The superintendent, warden, or the Commissioner of Corrections of any institution in
  which the petitioner was confined or imprisoned pursuant to the conviction; and
          (5) The circuit court, magistrate court, or municipal court which disposed of the petitioner’s
  criminal charge.
          (f) The prosecuting attorney of the county in which expungement is sought shall serve the
 petition for expungement, accompanying documentation, and any proposed expungement order
 by first class mail to any identified victims.
         (g) Notice of opposition. —
         (1) Upon receipt of a petition for expungement, the persons and entities listed in
 subsection (e) of this section, and any other interested person or agency that desires to oppose
 the expungement may, within 30 days of receipt of the petition, file a notice of opposition with the
 court with supporting documentation and sworn statements setting forth the reasons for resisting
 the petition for expungement.
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        (2) A copy of any notice of opposition with supporting documentation and sworn
 statements shall be served upon the petitioner in accordance with trial court rules.
        (3) The petitioner may file a reply to a notice of opposition no later than 30 days after
 service of any notice of opposition to the petition for expungement.
        (h) Burden of proof. — The burden of proof shall be on the petitioner seeking an order of
 expungement to prove by clear and convincing evidence:
        (1) That the conviction or convictions for which expungement is sought are the only
 convictions for that specified offense or offenses against the petitioner in this state and that the
 conviction or convictions are not excluded from expungement by the provisions of this section;
        (2) That the requisite time has passed since the conviction or convictions or the completion
 of any sentence of incarceration or period of supervision as set forth in subsection (b) of this
 section;
        (3) That the petitioner has no criminal charges pending against him or her;
        (4) That the expungement is consistent with the public welfare;
        (5) That the petitioner has, by his or her behavior since the conviction or convictions,
 evidenced that he or she has been rehabilitated and is law-abiding; and
        (6) Any other facts considered appropriate or necessary by the court to make a
 determination regarding the petition for expungement.
        (i) Court procedure for petition for expungement. — Within 60 days of the filing of a petition
 for expungement the circuit court shall:
        (1) Summarily grant the petition;
        (2) Return the petition to the petitioner to supply incomplete information or correct obvious
 errors in order to permit consideration of the petition on its merits;
        (3) Set the matter for hearing; or
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         (4) Summarily deny the petition if the court determines the petition discloses on its face
 or, based upon supporting documentation and sworn statements filed in opposition to the petition,
 discloses that the petitioner, as a matter of law, is not entitled to expungement.
         (j) Hearing on petition for expungement. —
         If the court sets the matter for hearing, all interested parties who have filed a notice of
 opposition shall be notified. At the hearing, the court may inquire into the background of the
 petitioner and shall have access to any reports or records relating to the petitioner that are on file
 with any law-enforcement authority, the institution of confinement, if any, and parole authority or
 other agency which was in any way involved with the petitioner’s arrest, conviction, sentence, and
 post-conviction supervision, including any record of arrest or conviction in any other state or
 federal court. The court may hear testimony of witnesses and any other matter the court considers
 proper and relevant to its determination regarding the petition. The court shall enter an order
 reflecting its ruling on the petition for expungement with appropriate findings of fact and
 conclusions of law.
         (k) Sealing of records. — If the court grants the petition for expungement, it shall order the
 sealing of all records in the custody of the court and expungement of any records in the custody
 of any other agency or official, including law-enforcement records. Every agency with records
 relating to the arrest, charge, or other matters arising out of the arrest or conviction that is ordered
 to expunge records shall certify to the court within 60 days of the entry of the expungement order
 that the required expungement has been completed. All orders enforcing the expungement
 procedure shall also be sealed.
        (l) Disclosure of expunged matters. —
        (1) Subject to the exceptions set forth in this section, upon expungement, the proceedings
 in the matter shall be considered, as a matter of law, never to have occurred. The court and other
 agencies shall reply to any inquiry that no record exists on the matter. The person whose record
 is expunged shall not have to disclose the fact of the record or any matter relating to the record
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 on an application for employment, credit, or other type of application: Provided, That any person
 applying for a position in which he or she would be engaging in the prevention, detection,
 investigation, prosecution, or incarceration of persons for violations of the law shall disclose any
 and all convictions to his or her prospective employer, regardless of whether the conviction or
 convictions have been expunged pursuant to this section.
        (2) A person for whom an order of expungement has been entered pursuant to this section
 may not be found guilty of perjury or otherwise giving a false statement, under any provision of
 this code, because of that person’s failure to recite or acknowledge the arrest, indictment,
 information, trial, or conviction, as long as the person is in compliance with subdivision (1) of this
 subsection.
        (3) Notwithstanding any provisions of this code to the contrary, any person required by
 state or federal law to obtain a criminal history record check on a prospective employee are
 authorized to have knowledge of any convictions expunged under this section.
        (m) Inspection of sealed records. — Inspection of the sealed records in the court’s
 possession may thereafter be permitted by the court only upon a motion by the person who is the
 subject of the records or upon a petition filed by a prosecuting attorney that inspection and
 possible use of the records in question are necessary to the investigation or prosecution of a
 crime in this state or another jurisdiction. If the court finds that there is a legitimate reason for
 access and the interests of justice will be served by granting a petition to inspect the sealed
 record, it may grant access under the terms and conditions determined by the court.
        (n) Fees for filing petition for expungement and processing orders of expungement. — The
 clerk of the circuit court shall charge and collect in advance the same fee for a petition for
 expungement as is charged for instituting a civil action pursuant to §59-1-11(a)(1) of this code. A
 person obtaining an order of expungement pursuant to the provisions of this section shall pay a
 fee of $100 to the records division of the West Virginia State Police for the cost of processing the
 order of expungement deposited into a special revenue account within the State Treasurer’s office
 to be known as the West Virginia State Police Criminal History Account.
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         (o) Notwithstanding any provision of this code to the contrary, a person may only obtain
 the relief of expungement afforded by the provisions of this section and §61-11-26a of this code
 once.
         (p) For the purposes of this section:
         (1) “Court record” means an official record of a court about a proceeding that the clerk of
 th