How it works in West Virginia

The steps

1. Get fingerprinted

   Book a fingerprint appointment with IdentoGO, online at www.identogo.com or by phone at (855) 766-7746. The West Virginia State Police say all background checks go through IdentoGO.

   Fingerprint fee: $47.25 — IdentoGO's fee for a state and national record check, as the West Virginia Board of Medicine publishes it for its applicants; IdentoGO adds $39.95 at an enrollment center outside West Virginia. The State Police's own page names no fee.

2. Request your record

   Your IdentoGO appointment is how you request your record from the West Virginia State Police. The State Police say to run this check first, to see which charges they have on file. You cannot get it at State Police headquarters. You will still need the court papers for each case (step 4).

3. Review your record

   Check each charge and conviction on your record against the law. Under W. Va. Code § 61-11-25, you cannot file if you have a past felony conviction. Some charges dismissed after a deferred adjudication are left out. They are charges under section 61-2-28(a) or (b), 61-2-9(a), (b) or (c), or 61-2-9a where the alleged victim is a family or household member. Criminal investigation reports are left out too. So are some records of a not-guilty finding by reason of mental illness, intellectual disability or addiction. Those are records of an offense that falls under section 15-12-1 and the sections after it. Under W. Va. Code § 61-11-26, each conviction you ask to expunge must be your only conviction for that offense in West Virginia. None may be on that section's list of offenses that do not qualify, such as a DUI or a felony of violence against a person. A DUI at least five years old does not bar an unrelated felony. If something on your record is wrong, the State Police have a form to challenge it. Keep a copy for your file.

4. Request certified documents

   Ask the circuit clerk (felonies) or the magistrate clerk (misdemeanors) in each county for copies of your case papers. Legal Aid of West Virginia lists the indictment, information or complaint, any plea agreement, the sentencing order and the disposition. For a conviction, the court's instructions ask for all documentation of your charges, your convictions and your completed jail time or supervision. If a restitution, protection, restraining or other no-contact order is in place, get a copy of it. For a petition under W. Va. Code § 61-11-26a, also get your proof from the approved program. That is a record that you kept to the treatment or recovery and counseling program, or your job readiness course certificate.

   Certified copy fee: $1.00 per page — the circuit clerk's fee for a copy made to go out of the office; the fee section lists no separate charge to certify a copy

5. Verify the final documents

   Check each paper against your record: the case number, the charges, the dates and the outcome. Make sure the papers show when you finished any jail time or supervision. Make a copy of each one.

6. Prepare your petition

   Fill in the court's form for your case. For an acquittal or dismissal, the court's form is titled a motion (SCA-C903), though the statute calls it a petition. For misdemeanors, use petition SCA-C906; for felonies, petition SCA-C907. Then check your wait. Under W. Va. Code § 61-11-25, you file at least 60 days after the court's order of acquittal or dismissal. Under W. Va. Code § 61-11-26, one misdemeanor waits one year, two or more misdemeanors two years, and a nonviolent felony five years. For one misdemeanor or a nonviolent felony, the wait runs from the conviction, or the end of any jail time or supervision, whichever is later. For two or more misdemeanors, it runs from the last conviction, or the end of the jail time or supervision ordered for it, whichever is later. Under W. Va. Code § 61-11-26a, the waits are shorter. One misdemeanor can be filed after 90 days in the approved treatment program, or once you finish the approved job readiness course. Either way, your jail time and supervision must also have ended. Two or more misdemeanors wait one year and a nonviolent felony three years, each counted the same way.

7. Finalize your petition

   A conviction petition must be verified under oath. It must also give the twelve items W. Va. Code § 61-11-26 lists. Among them are your names and aliases, your addresses since the offense, any victims' names, and why you want the expungement. It also asks whether any court has granted you an expungement or similar relief before, and what you have done toward rehabilitation. Attach your court papers from step 4 and a copy of any current restitution, protection, restraining or other no-contact order. For W. Va. Code § 61-11-26a, attach your program record or course certificate. Keep a copy of the whole package.

8. File your expungement petition

   File the petition with the circuit clerk in the county where the charges were filed or where you were convicted. For a conviction, serve a copy, with your papers, on five people or offices. They are the Superintendent of the State Police and the prosecuting attorney of each county of conviction. They also include the chief law-enforcement officer of the agency that arrested you. Add the superintendent, warden or Commissioner of Corrections of any place where you were held for the conviction. Last is the circuit, magistrate or municipal court that decided the charge. The prosecuting attorney then mails the petition to any identified victims. For an acquittal or dismissal, Legal Aid of West Virginia says to serve a copy on the county's prosecuting attorney.

   Filing fee: $200.00 — for a conviction petition, collected in advance by the circuit clerk, the same fee as for starting a civil action; there is no filing fee for an acquittal or dismissal petition. Other fees, such as service and copies, may apply.

9. Work with the court

   For a conviction, anyone you served may oppose the petition, and so may any other interested person or agency. They have 30 days from receiving it to file a notice of opposition, and you have 30 days to reply once it is served on you. Within 60 days of your filing, the court grants the petition, returns it to fix missing information or obvious errors, sets a hearing, or denies it if the law does not entitle you to it. You must prove six things by clear and convincing evidence. They are that these are your only convictions for that offense in West Virginia, that none is excluded, and that the wait has passed. They also include that no charges are pending against you and that the expungement is consistent with the public welfare. Last, your behavior since must show you are rehabilitated and law-abiding, and you must show any other facts the court needs. For an acquittal or dismissal, the court may set a hearing and notify the prosecuting attorney and the arresting agency, who may respond. It may grant the petition if no charges or proceedings on the matter are pending.

10. Receive the court's order

    The court rules on your petition in an order. If it grants the petition, it orders the court's records sealed and the records of every other agency, law enforcement included, expunged. The orders that carry out the expungement are sealed too. After an order under W. Va. Code § 61-11-26, you pay the records division of the West Virginia State Police a fee to process it. The law waives that fee for a petition under W. Va. Code § 61-11-26a. Keep a copy of the order.

    Cost: $100.00 — paid to the records division of the West Virginia State Police to process an order under section 61-11-26; waived for a petition under section 61-11-26a, and section 61-11-25 names no such fee for an acquittal or dismissal

11. Verify the record is expunged

    Each agency ordered to expunge records must certify to the court, within 60 days of the order, that it has done so. That rule is in both W. Va. Code § 61-11-25 and W. Va. Code § 61-11-26. The West Virginia State Police send a certified letter to the circuit clerk once they have expunged the record. They take no calls about an expungement's status, so ask the circuit clerk.

If you have to mail anything, remember to keep a copy of whatever you send and to use a method with a tracking number like the USPS Flat Rate Envelope.