Vacating Convictions in Washington
Anyone who has had to live with a criminal conviction knows how difficult it can make your life. You are constantly reminded of your mistakes every time you apply for a job, fill out a rental application, or are trying to get more education or training. Whether you are eligible to clean up your criminal history is mostly a matter of time and having no new criminal convictions.
Whether a person is eligible to have their criminal convictions vacated (or undone) is based on specific Washington state statutes. Please note that Washington does not use the phrase “expungement” like many other states. The proper “post conviction relief” term is vacate.
For most individuals, you either meet the criteria or you don’t. For a select few it can be a bit more complicated and may require additional steps in order for you to meet the eligibility requirements of the statute. This is where having a knowledgeable attorney familiar with vacating criminal convictions can save you money, time, and a huge headache.
In this section we will explore how to vacate a criminal conviction, what the eligibility requirements are, and some common questions and headaches that arise.
Whether you are attempting this on your own (not recommended) or hiring an attorney (recommended) the first step is to order a copy of your WATCH report from the Washington State Patrol (WSP). This is the official record of your arrests and criminal convictions and the first thing you will need in order to see if you are eligible to vacate any criminal convictions. There is a small fee of $12. You can obtain a WATCH report from the WSP here.
If at any point in your research you wish to speak with a member of our legal team, please call us at 253-383-3328 or email us at Office@Williamawhitelaw.com
Reasons to Vacate a criminal Conviction
There are a number of important reason a person may want to vacate their past criminal convictions. Most people do this for a specific reason like trying obtain a specific job, clearing up their record, or applying for schools or certifications. Some people have a more emotional reason and clearing up their record of a past criminal conviction helps them overcome past mistakes often attached to a difficult period in their life. Whatever your reason, there are concrete benefits to vacating past criminal convictions. Some of these being:
- Legally annuls the conviction
- Can truthfully state on an application that you have never been convicted of…
- No longer on the WATCH report or the FBI database
- No longer subject to any penalties or disqualifications due to the conviction
- The conviction cannot be used to enhance a sentence but it can be used in a later criminal prosecution.
NOTE: Vacating a criminal conviction will NOT restore your firearm rights. That is a separate process that our firm can also help you with. You can find more about restoring your gun rights here.
If you entered into a deferred sentence, or similar type of program that requires a guilt finding, it is generally still considered a “conviction” for record keeping purposes, including public dissemination. This applies even if the result of your successful completion resulted in a dismissal of the charges.
RCW 10.97.030(4) – Washington State Criminal Records Privacy Act defines a conviction or adverse disposition to include “a dismissal entered after a period of probation, suspension, or deferral of sentence.”
Thus, a charge that is dismissed after a successful completion of a deferred sentence program will still show up on your WATCH report until it is vacated. However, if you completed a Stipulated Order of Continuance (SOC), a Pre-trial Diversion Agreement (PDA), or a similar pre-trial agreement that did not require a guilty plea or finding of guilt, these should not show up on your WATCH report, but may show up elsewhere.
RCW 9.96.060 is the controlling statute for vacating misdemeanor or gross misdemeanor offenses. Please note that by law, you can only vacate 1 misdemeanor OR gross misdemeanor in your lifetime. You can vacate as many felony offenses as you are eligible. Thus, choosing to vacate a misdemeanor or gross misdemeanor is an important decision.
The following misdemeanors are NOT eligible to be vacated:
- Sex offenses, sexual exploitation of children, obscenity and pornography. This includes an “Attempt” convictions of any of these crimes.
- DUI, Physical Control, or operating a railroad/vessel (BUI) while under the influence.
Note: If you were ever charged with a DUI/Physical Control charge but later plead guilty to an amended charge, like Negligent Driving 1st or Reckless Driving, you are eligible to have that conviction vacated. However, you will not be eligible until 10 years after you have completed all the necessary requirements discussed. The reason for this 10 year period is due to the look back period for Felony DUIs. If you are unsure whether you qualify it’s always worth your time to speak with an attorney experienced in vacating convictions to see if you may be eligible.
An applicant must meet certain requirements regardless of whether the conviction was for a Domestic Violence (DV) or Non-DV offense:
- No new criminal convictions
- No new pending criminal charges (WA state, other states, or Federal Court)
- You are not currently restrained by an court order and you have not been restrained within the last 5 years. This includes no contact orders, domestic violence protection order, anti-harassment order, or a civil restraining order.
However, the timelines for eligibility break down different between Non-Domestic Violence crimes and Domestic Violence (DV) crimes.
- Non-DV Crimes: 3 years have passed since the end of ALL conditions of sentence. This includes your probation time and all fines have been paid. Let’s look at two examples:
Ex. 1 – Convicted of a Non-DV crime in 2002. 2 years of bench probation, plus ordered to pay fines. You pay all your fines before the 2 year probation is up, and you have no other problems that extend your probation time. This means the 3 year clock starts to run at the end of your 2 year probation period, or 2004.
Ex. 2 – Convicted of Non-DV crime in 2002. 2 years bench probation, plus ordered to pay fines. This time you were unable to pay off all your fines before your probation was up. You paid off all your fines 3 years after the conviction, in 2005. Thus, the 3 year clock, would begin to run in 2005, not 2004, as in the first example.
- DV Crimes: 5 years after completion of all conditions of sentence. This includes your probation time and all fines have been paid.
- NOTE: You are NOT eligible if you have had a previous domestic violence conviction. However, if multiple DV charges arise out of the same incident, you may still be eligible to vacate both.
For a Domestic Violence conviction, see the above examples but apply a 5 year timeline instead of 3 years.
Remember that vacating a conviction is always discretionary for the judge who hears the motion and can be objected to by the government. This is another reason that hiring an experienced attorney familiar with these types of motions is important. We are familiar with what prosecutors and judges are looking for and can present the best possible information to increase the chance of the judge granting the request.
Ironically, vacating a felony can often be easier than vacating a misdemeanor. In addition, you are not limited to only vacating one conviction, you can vacate multiple convictions as long as each qualifies. This is due to the Constitutional rights you lose when convicted of a felony. RCW 9.94a.640 is the controlling statute
An applicant must meet certain requirements in order to be eligible to vacate a felony conviction. If you intend to vacate multiple convictions, each one must qualify independently.
Eligible to have Felony vacated if:
- No pending criminal charges in any court (WA, out of state, Federal)
- No new criminal convictions in any court (WA, out of state, Federal) since the offenders discharge
Convictions that CANNOT be vacated:
- Violent offenses as defined by the Sentencing Reform Act (SRA); RCW 9.94A.030(53)
- Crimes against persons or children as defined in RCW 43.43.830(7)
- Felony DUI or Physical Control
All other convictions CAN be vacated, if:
- A Class B Felony – 10 years after the issuance of the certificate of discharge
- A Class C Felony – 5 years after the issuance of the certificate of discharge
Note: A certificate of discharge is issued by the Department of Corrections (DOC) after all conditions of the sentence have been completed, including payment of the Legal Financial Obligations (LFOs).
- Special Note: If you have been convicted of a new crime after your felony but a certificate of discharge was never issued for that felony, you may still be eligible to have your felony vacated. This is very fact specific to each person, but an experienced attorney has many tools and procedures at their disposal than a person unfamiliar with this practice area.
A Note on Gun Rights:
Please be aware that vacating a felony conviction will not automatically restore your gun rights. You will have to go through a separate process which is controlled by a different statute. We are able to handle your gun rights restoration as well. Most of our clients will hire us to vacate convictions and restore firearm rights at the same time as there is some cross over of resources.
You can find more information about restoring your gun rights here.
If you or a loved one is interested in having your criminal convictions vacated please give us a call at 253-383-3328 or email us at Office@Williamawhitelaw.com so we can get started today.