Recently, the Washington State Supreme Court issued a ruling that provides some clarity on the question whether a foreign conviction can prevent a person from vacating a conviction record in Washington State.

The Washington State vacate laws contain provisions requiring persons to be “conviction free” for a period of time before being able to vacate a conviction record. The felony vacate law requires a person to be conviction free for five years (class C felony) or ten years (Class B felony). RCW 9.94A.640(2)(c-d). The misdemeanor vacate law requires a person to be conviction free for three years. RCW 9.96.060(2)(h).

Does the location of the conviction matter? The vacate laws say “yes.” The felony vacate law states, “the offender has been convicted of a new crime in this state, another state, or federal court.” The misdemeanor vacate law states, “the applicant has been convicted of a new crime in this state, another state, or federal or tribal court.”

There is a Latin term that courts use to interpret statutes. “Expressio unius est exclusio alterius.” This phrase means, “the expression of one thing is the exclusion of another." This rule is commonly used in cases where a law states it applies to a list of things. There is an assumption the legislature only intended such a law to apply to the things listed, and courts rarely increase the scope of the law to things not expressly stated in the law.

But what about a conviction in a foreign country? Can a conviction in Canada, Mexico, or China prevent a person from vacating a conviction in Washington State? Recently, the Washington State Supreme Court issued a ruling that helps give clarity to this issue.

In State v. Lewis, 5 Wn.3d 114 (2025), the court ruled that foreign convictions do not count for purposes of determining a standard range sentence for a felony conviction. The felony sentencing law requires courts to consider “out-of-state” convictions. But “out-of-state” is not defined. The court concluded that the term only applies to convictions that occurred in the United States; either in a state or federal court. A primary reason the court refused to consider foreign convictions was the concern that some countries do not provide criminal defendants the same degree of due process protections as the United States.

“As people move over borders, they take their history with them. But the legislature must also be aware that there are nations that do not follow what we would recognize as minimum standards of due process in their criminal procedures. We are hesitant to conclude the legislature intended to include convictions from jurisdictions that allow coerced confessions, for example.”

Certain foreign countries may also prevent defendants from accessing a lawyer, may not provide a jury trial, and may not provide a speedy trial. There can be all sorts of coercive pressures placed on a person to plead guilty, or to ensure a finding of guilt. It would be unfair to consider these types of convictions as the equivalent to a conviction that occurred in the United States.

This reasoning should be applied to the vacate laws. The vacate laws use clear language listing the state and federal courts, but omit any reference to foreign courts. More fundamentally, our courts should not have to evaluate a foreign state's due process standards to ensure a conviction was fairly obtained. Therefore, a foreign conviction should not be considered under the standards of the vacate laws.

Our vacate laws can be complicated. Robertson Law is here to help you navigate your case to a successful conclusion. Please call or email Robertson Law with any questions you may have about your case.