Vacating Rules for DUI and DUI Related Convictions

Vacate Rules for DUI and DUI Related Crimes

Presently, Washington law does not permit vacation of any of the following criminal convictions:

1. Driving Under the Influence – RCW 46.61.502
2. Physical Control Under the Influence – RCW 46.61.504.
3. “Felony” DUI/Physical Control – RCW 46.61.502/.504.
4. Vehicular Homicide – RCW 46.61.520; when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner.
5. Vehicular Assault – RCW 46.61.522; when proximately caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner.

However, in very limited circumstances a conviction for Vehicular Assault may be eligible to be vacated. A conviction under the “DSO” prong, or – “Disregard for the Safety of Others” – is considered to be neither a violent offense nor a crime against persons, and may be eligible to be vacated.

There are certain DUI related offenses that may be vacated. According to the Washington State vacate law, certain crimes labeled “prior offenses” [RCW 9.96.060] may be eligible to be vacated under specific circumstances.

                “Prior offense” convictions are [RCW 46.61.5055]:

1. Negligent Driving in the first degree; where the charge was originally a violation for DUI (RCW 46.61.502); Physical Control (RCW 46.61.504); Vehicular Homicide (RCW 46.61.520); or Vehicular Assault (RCW 46.61.522).
2. Reckless Driving; where the charge was originally a violation for DUI (RCW 46.61.502); Physical Control (RCW 46.61.504); Vehicular Homicide (RCW 46.61.520); or Vehicular Assault (RCW 46.61.522).
3. Reckless Endangerment; where the charge was originally a violation for DUI (RCW 46.61.502); Physical Control (RCW 46.61.504); Vehicular Homicide (RCW 46.61.520); or Vehicular Assault (RCW 46.61.522).
4. Operating Commercial Motor Vehicle with Alcohol or THC in System – RCW 46.25.110.
5. Operating Non-Highway Vehicle Under the Influence – RCW 46.09.470.
6. Operating Snowmobile Under the Influence – RCW 46.10.490.
7. Operating Aircraft Under the Influence – RCW 47.68.270.
8. Operating a Vessel Under the Influence – RCW 79A.60.040.

According to the Washington State vacate law, these “prior offense” convictions can be vacated under the following circumstances:

1. The person must meet all conditions required to vacate under the misdemeanor/gross misdemeanor vacate law [link RCW 9.96.060].
2. At least three (3) years must have passed since the person completed the terms of sentence.
3. The person must establish he or she has not had any alcohol or drug violations within a ten (10) year period since the date of arrest.

Basically, this last provision creates a ten year wait requirement for persons seeking to vacate a “prior offense” conviction. For example, if a person was arrested on Jan. 1. 2008, and was ultimately convicted of a “prior offense” crime, assuming all other requirements are met, this person would not be eligible to vacate the conviction until Jan. 1, 2018.

The “prior offense” rules do not apply to what is considered a “Minor DUI” conviction; Driver Under Twenty-One Consuming Alcohol; RCW 46.61.503. A person may seek vacation of this conviction under the standard requirements of RCW 9.96.060. The ten year wait provision does not apply.