Jury: Persons are ineligible for jury service if they have been “convicted of perjury, false swearing or any crime punishable by imprisonment in excess of one year under the applicable law of this state, another state or the United States.” § 52-1-8(b)(6).  The federal courts have held that jury eligibility is not restored automatically upon completion of sentence, which has consequences for firearms dispossession. See U.S. v. Morrell, 61 F.3d 279 (4th Cir. 1995), discussed in the following section.

B.  Firearms

Persons convicted in any court of a crime “punishable by imprisonment for a term exceeding one year,” or of a misdemeanor crime of domestic violence, are guilty of a misdemeanor if they possess a firearm.  See W. Va. Code § 61-7-7(a)(1), (a)(8), (b). Persons convicted of a felony are separately prohibited from possessing a concealed handgun.   § 61-7-7(c).

Under § 61-7-7(g) persons prohibited from possessing a firearm under § 61-7-7(a) may regain their rights by expungement or set-aside, or by a pardon.²  Similarly, the prohibition on concealed handguns may be relieved by expungement, set-aside, pardon or civil rights restoration under § 61-7-4(a)(5).

A separate judicial restoration procedure in § 61-7-7(f) authorizes state courts to restore convicted individuals’ ability to possess firearms “if such possession would not violate any federal law.” However, this provision has been held by federal courts to be unavailable to offenders who remain barred by federal law from possessing firearms because their civil rights have not been “substantially” restored. See U.S. v. Morrell, supra, 61 F. 3d at 281, holding that “the civil rights of a convicted felon cannot be restored as an operation of West Virginia law upon the completion of a prison sentence because W.Va. Code § 52-1-8 disqualifies convicted felons from jury service.” There have been efforts in recent years, to date unsuccessful, to remove the “cannot violate federal law” impediment to judicial firearm restoration in West Virginia by restoring jury rights automatically, with the result that pardon or expungement are currently the only way to regain firearms rights. See § 61-7-7(g).³

II.  Pardon policy & practice

A.  Authority

Pardon authority resides exclusively in the governor, except for impeachment. W. Va. Const. art 7, § 11.  The governor is required to report the particulars of every clemency grant to the legislature, with reasons for the grant.  Id.; W. Va. Code § 5-1-16.

B.  Administration

The Parole Board has authority, if requested by the governor, to investigate and consider all applications for pardon, reprieve or commutation and to make recommendations thereon to the governor.   W. Va. Code § 62-12-13(o).  At least ten days prior to making a recommendation for pardon, reprieve or commutation, and prior to releasing any inmate on parole, the board shall notify the sentencing judge and prosecuting attorney.  § 62-12-13(p).  Only state convictions are eligible for pardon. As a matter of policy, the governor does not consider an application except upon the recommendation of the Parole Board.  Application forms are not published online and instead are only available from the Governor’s Office at 304-558-2000.

C.  Effect

A pardon lifts most legal barriers but does not preclude consideration of the pardoned offense as a predicate.  Dean v. Skeen, 137 W. Va. 105 (1952).   A pardon may also restore firearms rights.  See Part I, § 61-7-7(g). A full and unconditional pardon permits a person to petition the circuit court in the county of conviction to have the conviction expunged. W. Va. Code § 5-1-16a(a). However, a person is not eligible until one year after having been pardoned and at least five years after the discharge of the sentence. §§ 5-1-16a(c), (d). Those convicted of treason, murder, kidnapping, or other sexual offenses under § 61-8B are not eligible for expungement under this section. § 5-1-16a(e).  Records expunged under these provisions “may not be considered in an application to an educational institution or professional licensure. § 5-1-16a(c).

A pardon is the exclusive way, along with expungement, that convicted individuals may regain their firearms rights, and apparently the only way they may avoid the constitutional bars to holding state office. See Part I, supra.

D.  Frequency of grants

The governor receives from 50-100 applications for pardon each year.  Pardons are rarely granted – only one pardon in the last 10 years, and only 121 since 1980.  Conditional pardons for prisoners (a sort of parole) are more frequent (200 in this same time period).   Since taking office in 2017 Governor Justice has granted no pardons, and his predecessor Governor Tomblin granted only one pardon.  Source: Governor’s Office.

E.  Contact

Office of General Counsel, Governor’s Office
Charleston, WV  25305-0770
304-558-2000

III.  Expungement, sealing & other record relief

A.  Expungement for misdemeanors and nonviolent felonies

Until June 7, 2019, the only convictions eligible for expungement were youthful misdemeanor first offenses.   See W. Va Code § 61-11-26 (2018).  Effective on that date, an amended § 61-11-26 and a new § 61-11-26a dramatically expanded eligibility for expungement to most misdemeanors and some non-violent felonies, including those felony convictions that had been made eligible for redesignation as misdemeanors just two years before pursuant to W.Va. Code §§ 61-11B, et. seq. See SB 152.⁴.   

Persons with multiple misdemeanors are eligible for expungement but a person may apply for one felony only, including “offenses arising from the same transaction or series of transactions.” The law is not clear whether a second felony conviction disqualifies the first, even if charged in the same case.

W. Va. Code § 61-11-26(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.
(2) Nonviolent felonies – Subject to the limitations set forth in this section, a person convicted of a nonviolent offense or offenses arising from the same transaction or series of transactions may, pursuant to the provisions of this section, petition the court in which the conviction or convictions occurred for expungement of the convictions or convictions and the records associated with the conviction or convictions.

A number of felony and misdemeanor offenses are ineligible, including those involving violence or domestic violence; felony offenses where the victim was a minor; sexual offenses; use or exhibition of a deadly weapon or dangerous instrument; abuse or neglect of an incapacitated adult; cruelty to animals; burglary to a dwelling; stalking or harassment. § 61-11-26(c).  Various driving offenses, including driving while a license is suspended or revoked, driving while impaired, and violations by holders of commercial licenses or drivers of a commercial motor vehicle. §§ 61-11-26(c), 61-11-26b.  If convicted of driving under the influence, a person can still expunge an unrelated and eligible felony, so long as the DUI was at least five years old at the time the expungement petition is filed. § 61-11-26(c).  

Persons convicted of an eligible offense must wait a set period of time, based on the date of conviction, completion of any sentence of incarceration or completion of supervision, whichever is later in time.  For a misdemeanor conviction, the waiting period is one year.  § 61-11-26(b)(1). If convicted of multiple misdemeanors, the waiting period is two years. Id. (b)(2). For those convicted of an eligible nonviolent felony, the waiting period is five years. Id. at (b)(3).  The eligibility waiting period is shortened for persons who have participated in an “approved treatment or recovery and job program”: 90 days (from one year) for a single misdemeanor, one year (from two years) for multiple misdemeanors, and three years (from five years) for nonviolent felonies.  § 61-11-26a(a). 

Procedure

Statewide forms made available through the West Virginia Judiciary are available for use, including a Petition for Expungement of Misdemeanor Violations and Traffic Citations and a Petition for Expungement of Felony Violations. In the petition, the petitioner must provide “significant personal information” and explain why expungement is sought (“such as, but not limited to, employment or licensure purposes”), and why it should be granted.  W. Va. Code § 61-11-26(d).  If expungement is sought by a person who has participated in an approved treatment program, the person must also explain “[t]he 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.”  § 61-11-26a(b).  The petitioner must notify the state police, the police department where the offense was committed, prosecuting attorney, court where convicted, superintendent or warden where confined; and the prosecutor must notify “any identified victim.”  § 61-11-26(e). Any person or entity that must be notified and any other “interested individual or agency” may file an opposition within “30 days of receipt of the petition,” and the petitioner has 30 days after service to file a reply to the opposition. § 61-11-26(g).  

The clerk of court is to charge the same filing fee as for any civil action.  § 61-11-26(n).  An additional $100 fee is charged after the expungement is granted for the “records division of the West Virginia State Police,” except in cases where the special treatment or job program authority is applicable.  §§ 61-11-26(n) and 61-11-26a(c). 

A petitioner has the burden of proof to show by clear and convincing evidence that he or she has no other cases pending, that expungement is consistent with the general welfare, and 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,” along with the other ministerial requirements for relief.  § 61-11-26(h).  Within 60 days of the filing of the petition, the court shall summarily grant the petition, set it for hearing, or deny it if the court finds that the petition is insufficient or that the petitioner is not entitled to expungement as a matter of law.  § 61-11-26(i).  If the court sets a hearing, it must notify those who have filed an opposition and may conduct a full inquiry into the petitioner’s character. § 61-11-26(j).

Amendments in 2020 deleted the provision that a person may file only one expungement petition under either the general expungement authority or the special treatment/job program authority. See SB562. 

Effect

If the petition is granted, the court “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.”  W. Va. Code § 61-11-26(k).

[With some exceptions,] 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 on an application for employment, credit or other type of application.

W. Va. Code § 61-11-26(l)(1).

Any person required by state or federal law to obtain a criminal history record check on a prospective employee [is] authorized to have knowledge of any conviction expunged . . 

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.

§§ 61-11-26(l)(3), (m).  

B.  Victims of human trafficking

W. Va. Code § 61-14-9 provides that an individual convicted of prostitution as a direct result of being a victim of trafficking, including juveniles, may apply by petition to the circuit court in the county of conviction to vacate the conviction (or adjudication) and expunge the record of conviction. The court may grant the petition upon a finding that the individual’s participation in the offense was a direct result of being a victim of trafficking. § 61-14-9(a). A victim of trafficking seeking relief under this section is not required to complete any type of rehabilitation in order to obtain expungement.  Id. at (b). A petition filed under his provision is subject to the procedural requirements of § 61-11-26, except that the age or criminal history limitations in that section are inapplicable to victims of human trafficking. Id. at (b). (Enacted in 2017 and revised in 2021 by HB2830 to include juveniles).

C.  Pardoned convictions 

Persons granted a full and unconditional pardon may apply for expungement from the circuit court in which they were convicted one year after the pardon was granted and at least five years after discharge from sentence, with certain exceptions, including reasons, murder, kidnapping and sex offenses.  W. Va. Code § 5-1-16a(c), (d), (e).  If a pardoned conviction is expunged, educational institutions and licensing authorities may not consider it.  § 5-1-16a(c).

D.  Deferred adjudication 

In 2022, provisions were added to the code authorizing pretrial diversion and deferred adjudication. See §§ 61-11-22, 61-11-22a.  Pretrial diversion is controlled by the prosecutor. Deferred adjudication is controlled by and administered by the court.  Upon the entry of a guilty plea to a felony or misdemeanor “the court may, upon motion, defer acceptance of the guilty plea and defer further adjudication thereon and release the defendant upon such terms and conditions as the court deems just and necessary. Terms and conditions may include, but are not limited to, periods of incarceration, drug and alcohol treatment, counseling and participation in intervention programs.” W. Va. Code § 61-11-22a(a).   If the offense to which the plea of guilty is entered is a felony, the circuit court may defer adjudication for a period not to exceed three years. If the offense to which the plea of guilty is entered is a misdemeanor, the court may defer adjudication for a period not to exceed two years. § 61-11-22a(b).

If the defendant complies with the court-imposed terms and conditions, they shall be permitted to withdraw their plea of guilty and the matter is dismissed or, as may be agreed upon by the court and the parties, they may enter a plea of guilty or no contest to a lesser offense. Id. § 61-11-22a(f).

In 2024, HB 4399 amended § 61-11-25(a) to make clear that when charges are dismissed under either § 61-11-22 or § 61-11-22a, expungement is available under this provision, excluding domestic violence and DUIs.

E.  Non-conviction records 

Records in cases of acquittal or where the charges were dismissed (except pursuant to a plea to other charges in the case) may be expunged upon petition filed no sooner than 60 days after disposition.  Records in DUI and domestic violence cases are ineligible for expungement, and a person who has a prior felony conviction is ineligible for relief.  See W. Va. Code §§ 61-11-25(a), (b).  As noted in the preceding section, in 2024, § 61-11-25(a) was amended to clarify that expungement is available upon successful completion of pretrial diversion and deferred adjudication.  Under § 61-11-25(b), the court must inform the defendant of the right to seek expungement upon disposition.    

The West Virginia Judiciary provides a statewide form, entitled Motion for Expungement of Criminal Records Due to Acquittal or Dismissal for Reasons Other Than Entry of a Plea. There shall be no filing fees or charges for filing a petition to expunge.  § 61-11-25(g).  Upon receipt of the filing, the court schedules a hearing, notifies the prosecutor, who has the right to oppose.  If the court finds that there are no charges pending relating to the matter for which expungement is sought, the court “may” order the sealing of all records in its custody and in the custody of any other agency or official including law enforcement records. § 61-11-25(d).

Every agency with records relating to the arrest, charge or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty days of the entry of the expungement order, that the required expungement has been completed.    

Upon expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter.  All orders enforcing the expungement procedure shall also be sealed.The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application.

§ 61-11-25(e).  Inspection of expunged non-conviction records is limited to their subject upon motion, and to a prosecutor upon petition, for a specific investigation or prosecution, the latter which is only granted if the court finds that granting the request is within the interests of justice.  § 61-11-25(f):     

F.  Juvenile records

Juvenile records are confidential by operation of law. W. Va. Code § 49-5-101(a). If a proceeding is transferred to adult court, records are not automatically sealed, and instead sealed one year after turning 18 or one year after juvenile or personal jurisdiction is terminated.  §§ 49-5-101(e), 49-5-104(a).  Records are available only to the child, to law enforcement and specified other entities, and by court order.  § 49-5-101(b) and (c).  Records of violent or felonious offenses may be made available to the public. § 49-5-101(g).    See also provisions in W. Va. Code § 61-14-9 described above, authorizing vacatur and expungement for juveniles convicted of prostitution without regard to age limits in these sections.   

IV.  Criminal record in employment & licensing

A.  Employment

West Virginia has no general rule or law governing consideration of conviction in public or private employment.

B.  Licensing

Until 2019, West Virginia had no general law regulating consideration of conviction in licensure, except a rule that that licensing authorities could not consider pardoned convictions that had been expunged. W. Va Code § 5-1-16a(b).  By HB118 specified licensed professions are subject to similar (though not identical) regulation.  Covered occupations include therapists, psychologists, pharmacists, nursing home administrators, hearing aid dealers, podiatrists, social workers, real estate appraises, athlete agents.  W. Va. Code § 30-1-24 addresses “Use of criminal records as disqualification of authorization to practice,” and provides that boards may not disqualify based on conviction “unless that conviction is for a crime that bears a rational nexus to the occupation requiring licensure.” § 30-1-24(a).  In addition, it prohibits the use of the term “moral turpitude”: 

Because the term “moral turpitude” is vague and subject to inconsistent applications, boards subject to the requirements of this section may not rely upon the description of a crime for which an applicant has been convicted as one of “moral turpitude” as a basis for denying licensure: Provided, That if the prior conviction for the underlying crime bears a rational nexus to the profession or occupation requiring licensure, the board may consider the conviction according to the requirements of subdivision (1) of this subsection. 

§ 30-1-24(b)(2).  Standards to determine “rational nexus” include seriousness of crime, passage of time and evidence of rehabilitation. § 30-1-24(b)(1).  It does not require the board to give reasons for denial, though it does permit a candidate who has been disqualified from licensure due to a criminal conviction to apply for initial licensure if a period of 5 years (with violent and sexual crimes subject to a longer period of disqualification) after the date of conviction or the date of release from incarceration, whichever is later, so long as no other convictions occurred during that time. § 30-1-24(b)(3). It also provides for a preliminary determination within 60 days (but no cap on application fee as with other similar laws).   § 30-1-24(b)(4). Finally, HB118 reenacted a number of specific licensing schemes that prohibit consideration of convictions within the past five years, deleting a provision requiring applicants to have “good moral character.”  However, the new law expressly does not apply to occupations regulated by the state medical board, physician assistants, osteopathic physicians and surgeons, private investigators, or security guards.

In 2020, West Virginia followed its 2019 enactment by extending substantially identical standards to a variety of additional licenses, including those issued by the Fire Marshal (HR4352) and by the Motor Vehicle Administration (dealers and wreckers), Agriculture Department (horse and dog racing), Lottery Commission, real estate, insurance, and authorized gaming (HR4353):

• • The crime must bear a “rational nexus” to the licensed activity, as determined by specified factors;
  • An individual with a disqualifying conviction may apply for initial licensure five years from the date of conviction or the date of release from incarceration, whichever is later, if no intervening crime and if the crime not violent or sexual;
  • Preliminary determination as to likely disqualification within 60 days, and a fee to recoup costs.