WV First-Offense Conditional Discharge — W. Va. Code § 60A-4-407

Last verified: May 2026

The Statute — § 60A-4-407

W. Va. Code § 60A-4-407 provides that "whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under [§ 60A-4-401(c)], the court may, without entering a judgment of guilt and with the consent of the accused, defer further proceedings and place him on probation upon terms and conditions."

If the defendant violates the terms of probation, the court enters an adjudication of guilt and proceeds to sentencing. If the defendant successfully completes probation, the proceedings against the defendant are dismissed without an adjudication of guilt.

Eligibility Requirements

• First offense. The defendant must not have a prior conviction under WV controlled-substances law, federal narcotics law, or any other state’s controlled-substances law. A prior arrest without conviction does not bar § 60A-4-407 relief.
• Less than 15 grams. The statute applies to first-offense possession of less than 15 g of cannabis (or other small-quantity Schedule I / II possession). Possession of larger quantities is treated as possession with intent to deliver under § 60A-4-401(a) and is felony-charged.
• Possession only. Conditional discharge applies to simple possession charges; it does not apply to cultivation (felony under § 60A-4-401(a)), trafficking (§ 60A-4-409), or distribution-related charges.
• Court discretion. The court is not required to grant conditional discharge; the prosecution may oppose. Practice varies by county and by individual judge.

Typical Probation Conditions

• Completion of a court-approved drug-education program (typically 8–12 hours)
• Random urine drug testing during the probation period (typically 6 months to 1 year)
• No further drug or alcohol arrests or convictions during probation
• Compliance with general probation conditions (employment, residence reporting, no firearm possession)
• Payment of court costs, supervision fees, drug-education-program fees

Successful Completion — Dismissal and Record Sealing

Upon successful completion of probation, § 60A-4-407 directs the court to dismiss the proceedings without an adjudication of guilt. Once dismissed, a separate motion may be filed to seal the arrest and court records under West Virginia’s expungement procedure. Sealed records are removed from public view but may remain accessible to law enforcement, federal agencies conducting clearance investigations, and certain state licensing boards (e.g., medical, nursing, pharmacy boards).

Why Conditional Discharge Matters

For many West Virginia first offenders, the difference between a misdemeanor possession conviction and a successful conditional discharge is the difference between an open or closed career path. Specific impact areas:

• Federal employment. FBI CJIS Division (Clarksburg, ~3,000+ employees), Camp Dawson, NIOSH (Morgantown), VA Medical Centers, and Federal Bureau of Prisons facilities (FCI Beckley, FCI Morgantown, FCI Hazelton, USP Hazelton) all require drug-free background. A misdemeanor conviction is a categorical disqualifier for many positions; a successful conditional discharge with sealed record may not be.
• Security clearances. SF-86 questionnaires require disclosure of certain arrests and convictions; sealed records still must be disclosed in clearance contexts but are generally less prejudicial than open convictions.
• CDL holders. FMCSA Part 382 doesn’t prohibit hiring drivers with possession convictions, but most carriers (Werner, CSX, regional trucking) treat misdemeanor drug convictions as employment disqualifiers.
• Healthcare professionals. WV Boards of Medicine and Nursing review controlled-substance convictions during licensing and renewal. Sealed conditional discharges receive more lenient review.
• College students. WVU, Marshall, and West Virginia State University (WVSU) generally do not expel for off-campus possession, but a conviction can affect financial aid, scholarship retention, study-abroad eligibility, and graduate-school admissions.
• Federal student aid. The 2020 FUTURE Act removed the categorical drug-conviction disqualifier from federal student-aid eligibility; sealed records reduce inadvertent disclosure complications.

What § 60A-4-407 Does Not Cover

• Cultivation cases (felony under § 60A-4-401(a))
• Trafficking cases (§ 60A-4-409)
• Distribution / possession-with-intent (§ 60A-4-401(a))
• Repeat offenses (only first-offense possession)
• Federal charges (state-court conditional discharge has no preclusive effect on federal prosecution)

Practical Advice

Anyone arrested for first-offense possession in West Virginia should consult a WV-licensed criminal-defense attorney as early as possible — ideally before initial appearance. Negotiating § 60A-4-407 conditional discharge is fact-intensive and benefits from prosecutor / judge familiarity. The WV State Bar (304-553-7220) maintains a referral service. WV Public Defender Services represents indigent defendants.

Federal-employee, CDL, and healthcare-professional defendants should also consult with an employment / clearance attorney before any plea, because the post-disposition record-sealing strategy interacts with federal-clearance disclosure requirements in non-obvious ways.

Related on this site: WV Cultivation = Felony from One Plant, WV Cannabis DUI.