Expunging a West Virginia Record After Completing Probation

Attorney Answer

Probably yes — but which statute applies, and how long you have to wait, depends on something you need to confirm first: whether your plea ended in a conviction or in a dismissal after probation. That one fact changes everything.

If the plea produced a conviction, the governing provision is W. Va. Code § 61-11-26, which covers expungement of convictions. Eligible offenses are misdemeanors and non-violent felonies. The waiting period runs from the later of the conviction, completion of any sentence of incarceration, or completion of any period of supervision — one year for a single misdemeanor, two years where there are multiple misdemeanors, and five years for a non-violent felony. Because probation is a period of supervision, your clock started when probation ended, not when you entered the plea.

Several categories are excluded outright under W. Va. Code § 61-11-26: crimes of violence, offenses with minor victims, domestic violence offenses, DUI offenses, sexual offenses, burglary of a dwelling, crimes involving a deadly weapon, and conspiracy or attempt to commit an excluded felony. If your charge is on that list, no amount of good behavior will make it eligible.

If instead your "plea deal" was structured as a deferred adjudication or pretrial diversion that ended in the charge being dismissed once you finished probation, then W. Va. Code § 61-11-25 applies rather than § 61-11-26. That section covers acquittals, dismissed charges, and successful completion of deferred adjudication or pretrial diversion — and the path is easier. This is a common structure, and many people describe it as "a plea deal," so it is worth checking your paperwork before assuming the harder route.

One caution from the Supreme Court of Appeals. In In re Petition of A.N.T. for Expungement of Records, 238 W. Va. 701, 798 S.E.2d 623 (2017), the Court reversed an order granting expungement, holding that expungement in West Virginia is purely a creature of statute and that a circuit court has no inherent authority to grant it where the statutory criteria are not met. The petitioner's rehabilitation and the effect of the record on her employment and professional licensing were not extraordinary circumstances, because they are the ordinary consequences anyone with a record faces. Note the timing: A.N.T. was decided under the pre-2019 framework, and the Legislature enacted the current, substantially broader conviction-expungement scheme in § 61-11-26 in 2019, so the case's specific eligibility analysis no longer controls. What survives is the structural point — eligibility comes from the statute and from nothing else, so a sympathetic story will not substitute for meeting the criteria.

What you can do

1. Get a certified copy of your disposition from the circuit or magistrate clerk in the county where the case was handled. This is the document that answers the conviction-versus-dismissal question. 2. Read what it actually says. "Convicted," "adjudged guilty," or "sentence imposed" points to § 61-11-26. "Dismissed following successful completion of deferred adjudication" or "pretrial diversion" points to § 61-11-25. 3. Order your full criminal history from the West Virginia State Police so you know every entry, not just the one you remember. 4. Check your offense against the § 61-11-26 exclusion list before doing anything else. 5. Identify the date probation actually terminated — that is the date your waiting period runs from, and the order terminating supervision is what proves it. 6. File the petition in the circuit court where the case was handled. Expect the prosecuting attorney to be entitled to respond, so gather the records that show you completed every term of the sentence, including costs and fines.

⏱ Time limits apply. W. Va. Code § 61-11-26 sets waiting periods that run from the later of conviction, release from incarceration, or completion of supervision. How long you must wait depends on your specific offense and disposition, so confirm both against your certified record before filing.