Can a DUI be expunged in West Virginia?

Whether a DUI can be cleared at all

A West Virginia DUI conviction cannot be expunged. West Virginia Code Section 61-11-26(c)(7) lists any offense of driving under the influence of alcohol or a controlled substance among the convictions a person is not eligible to have expunged, and the Judiciary's expungement instructions repeat that exclusion for both misdemeanors and felonies. The route that reaches a first DUI is Section 17C-5-2b: on a plea or finding of guilt under Section 17C-5-2(e), with no prior alcohol or drug driving offense and notice to the court within 30 days of arrest, the court defers proceedings without entering a judgment of guilt and places the person on probation conditioned on completing the Motor Vehicle Alcohol Test and Lock Program. On successful completion the charges are dismissed, and one year after probation ends the person may apply to expunge the records.

“(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: ... (7) Any offense of driving under the influence of alcohol or a controlled substance;”

The driving record is a separate record

This is the part most summaries leave out. A court can seal or expunge the criminal case and the licensing agency can still keep the DUI on the driver record, where it reaches insurers and counts as a prior offence if there is a second one.

Not cleared. West Virginia says so twice, in plain terms. Section 17C-5-2b(g)(1) allows expungement of all official records of the arrest, trial and conviction under that section except for those maintained by the Division of Motor Vehicles. Section 61-11-25(a) carries the same carve-out, providing that no record in the Division of Motor Vehicles may be expunged by virtue of any order of expungement entered pursuant to Section 17C-5-2b. Section 17C-5-2b(d) likewise states that the dismissal and discharge is not a conviction for purposes of disqualifications or disabilities imposed by law, except for those provided in the licence revocation article at Section 17C-5A-1 and following.

“Provided, That no record in the Division of Motor Vehicles may be expunged by virtue of any order of expungement entered pursuant to §17C-5-2b of this code”

What else sits on that record: suspensions and points in West Virginia.

How long the wait is, and from when

Under West Virginia Code Section 17C-5-2b(g)(1), the one-year period begins to run immediately on the expiration of the term of probation imposed under that section. Participation in the Motor Vehicle Alcohol Test and Lock Program must itself last at least 165 days following a 15-day licence suspension and be completed within one year. For a charge that ended in acquittal or dismissal outside that program, Section 61-11-25(b) allows a petition no sooner than 60 days after the order of acquittal or dismissal. For convictions that are eligible for expungement, Section 61-11-26(b) sets one year for a single misdemeanor, two years for multiple misdemeanors and five years for a nonviolent felony.

“After a period of not less than one year, which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this section, the person may apply to the court for an order to expunge all official records of his or her arrest, trial, and conviction”

Automatic or by petition

West Virginia has no Clean Slate or automatic sealing law covering a DUI. Every route requires a filing: a motion under Section 17C-5-2b(g) after the deferral programme, a civil petition under Section 61-11-25 after an acquittal, dismissal, pre-trial diversion or deferred adjudication, or a petition under Section 61-11-26 for the convictions that are eligible. Section 61-11-25(b) does require any court entering an order of acquittal or dismissal to inform the person of the right to file an expungement petition.

“(b) The expungement petition shall be filed not sooner than 60 days following the order of acquittal or dismissal by the court. Any court entering an order of acquittal or dismissal shall inform the person who has been found not guilty or against whom charges have been dismissed of his or her”

Where it is filed, and what it costs

Section 61-11-25(g) states there are no filing fees charged or costs assessed for filing an action under that section, which covers an acquittal, a dismissal, or charges dismissed after a pre-trial diversion or deferred adjudication. A motion under Section 17C-5-2b(g) goes to the court that imposed the deferral, and the prosecuting attorney has 30 days after service to object, with a hearing if objections are filed. Section 17C-5-2b(h) separately requires a person whose case is disposed of under that section to pay the amount of court costs that could be assessed against a person convicted of the offence. For the conviction expungements that are allowed, the Judiciary's instructions state a $200.00 filing fee collected in advance plus a $100.00 fee to the records division of the West Virginia State Police once expungement is granted, waived where the petition is granted under the expedited procedure for a person with a medically documented history of substance abuse.

“(g) There shall be no filing fees charged or costs assessed for filing an action pursuant to this section.”

Whether a cleared DUI still counts as a prior

West Virginia Code Section 17C-5-2b(d) provides that unless the person is convicted of a subsequent violation of the article, discharge and dismissal is without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law, except as provided in Section 17C-5-2 regarding subsequent offences and except for the disqualifications in Section 17C-5A-1 and following. The same subsection preserves inquiries made in connection with a subsequent offence. Section 17C-5-2b(e) allows only one discharge and dismissal per person.

“Except as provided in §17C-5-2 of this code regarding subsequent offenses, the effect of the dismissal and discharge shall be to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial.”

The statute: W. Va. Code § 17C-5-2b

“(g)(1) After a period of not less than one year, which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this section, the person may apply to the court for an order to expunge all official records of his or her arrest, trial, and conviction”