We receive a lot of inquiries asking to clear or remove criminal records. I understand why people ask. I wish Washington State had laws to help people achieve this goal in each circumstance. We have a “vacate” law, which only applies to “conviction records.” So it is helpful to understand what a “conviction record” is, so people will know whether or not the vacate remedy will apply to their situation.

Washington State courts employ a number of creative ways to resolve criminal cases. As a defendant, they may sound and look a lot alike. But how a case “ends” matters. In this blog I will describe some of these creative dispositions, but more importantly describe what it means to be “convicted” of a criminal offense.

First, let's define what a conviction is. Washington law defines a conviction as an adjudication of guilt … and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty. How will you know that you have been convicted? A guilty verdict following a jury trial or bench (judge) trial would appear self-explanatory. A guilty plea is more complicated, and certain rules must be satisfied. Among those, a person must be advised of all constitutional trial rights and acknowledge waiving those rights; must be advised of the maximum penalty for the offense and any mandatory minimum punishments; must be advised of certain collateral consequences like immigration consequences; must make a factual statement admitting guilt; and the judge must determine that the person is doing all of these things in a knowing and voluntary way. A guilty plea involves a lot of paperwork, and judges go through the process slowly to make sure a defendant understands all aspects of the process.

A “conviction” is required before punishment can be imposed. Here is where things can get confusing. Except for felony offenses, a court can impose a suspended or deferred sentence. A suspended sentence simply means the court imposes a punishment, and suspends all or part of it. The suspended part can be imposed in the future if the defendant violates the terms of the suspension.

A deferred sentence operates the same way. The distinction is that at the end of the deferral term the judge has the discretion to dismiss the charge. Often times a judge or lawyer may say that if a person receives a deferred sentence their conviction can be erased or taken off their record at a later date. This is not true. Make no mistake, a deferred sentence is a conviction even after it is “dismissed.”

How can this be? Under the Criminal Records Privacy Act, a “conviction” means any disposition of a criminal charge that includes … a dismissal following a period of deferral of sentence. I want to be very clear on this: A dismissal following a deferred sentence is still a conviction record and will be disclosed as a conviction record by law enforcement agencies such as the Washington State Patrol. A recent State Supreme Court decision affirmed this, and I wrote about it in a prior blog entry. A dismissed deferred sentence conviction must be vacated.

Many, but not all, courts offer case dispositions that do not involve a “conviction.” These are called by many different names: stipulated order of continuance (SOC) and pre-trial diversion (PDA) are most common. These dispositions share common attributes: the case is delayed for a period of time, the defendant agrees to do certain things, and at the end the prosecutor agrees to dismiss the charge. Procedurally, no admission of guilt is entered and a dismissal is entered prior to any finding of guilt. But there is a catch: the defendant must agree to waive trial rights, and stipulate to certain facts that would establish their guilt if they violate the agreement. These dispositions, if successfully completed, avoid a conviction.

These dispositions are not conviction records. This means they are also not eligible for the vacate remedy. Why? Because there is no guilty plea or verdict. These cases are considered “dismissals.” The Washington State Patrol does not disclose these cases on WATCH Reports. But the case records are available to the public, just like any other court record. And sometimes these records can still show up on employment background checks.

What about a deferred prosecution? A deferred prosecution is a legislatively created disposition where a defendant agrees to undergo certain forms of treatment to avoid a conviction. It can only be used for non-felony offenses. If the defendant fails to complete treatment or violates some other part of the agreement, the deferred prosecution is revoked and the defendant is convicted. In DUI cases, a successfully completed and dismissed deferred prosecution can be used to enhance the sentence of a future DUI conviction. Why? Because the legislature said so. A deferred prosecution can be used for non-DUI offenses as well. A successfully completed deferred prosecution is not a conviction.

Finally, what about drug court, mental health court, or veterans' court? These programs offer case dispositions that can avoid a “conviction.” In some circumstances, there is a conviction, but the punishment is different than a traditional court proceeding. The rules addressed above apply. Any “conviction” will involve a lot paperwork, a long discussion with the judge, and recognition of the waiver of trial rights.

What does this mean for the vacate law? The law is clear that only conviction records can be vacated. The first paragraph explains that the purpose of the law is to “withdraw a plea of guilty” and “setting aside the verdict of guilty.” Further, all persons “convicted” of a crime may apply for a vacate so long as certain conditions are met. This language excludes the diversions and deferred prosecutions described above.

What should you do? As I mentioned above, the distinctions between these dispositions can be confusing. It is important to ask your lawyer the following questions: (1) Will my case result in a conviction? (2) If yes, can my conviction be vacated? (3) Are there any issues that can affect my eligibility to vacate in the future? If your lawyer cannot answer these questions, find a lawyer who can.

                The Washington Legislature makes frequent changes to the vacate laws, and these changes can be confusing. Robertson Law stays on top of these changes, and we are 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.