Washington State domestic violence laws are written to express a specific policy: to protect vulnerable persons, particularly women and children, from harm, and hold domestic abusers responsible for their behavior. One of the ways this policy is promoted is by restricting eligibility to vacate domestic violence convictions. This blog, however, will address a significant loophole that exists in the domestic violence vacate laws that gets around one of these restrictions.

The misdemeanor vacate law has a specific section devoted to limiting the ability to vacate domestic violence convictions. This blog focuses on one specific limitation. The law states;

[A]n applicant may not have the record of conviction … vacated if … the following is present … The applicant has two or more domestic violence convictions stemming from different incidents. RCW 9.96.060(2)(f)(ii).

What does this mean? It means if a person has two domestic violence convictions from two separate incidents (i.e. dates of arrest) then the person cannot vacate either conviction. There is no way around this.

But is there? In recent years this office has successfully vacated convictions for clients where they had more than one domestic violence conviction. How is this possible?

The answer has to do with the differences that exist between the misdemeanor vacate law and the felony vacate law. While the misdemeanor vacate law has specific limitations for domestic violence convictions, the felony vacate law has none. The felony vacate law excludes the vacate remedy from two general categories of offenses: violent crimes and crimes against vulnerable persons. RCW 9.94A.640(2). Yes, in some instances a domestic violence offense will fall under one of these categories. But not all do. Therefore, it is possible to vacate multiple felony domestic violence convictions.

What about a mix of felony and misdemeanor convictions? Under the felony vacate law, the misdemeanor conviction does not prohibit the vacate of the felony so long as all statutory requirements are met. Under the misdemeanor vacate law, however, the felony will prohibit the vacate of the misdemeanor. So what can you do?

You vacate the felony first. The vacate remedy contains the answer. Once a conviction is vacated, the conviction is removed from the person's criminal history, and the person is released from all “penalties and disabilities” resulting from the offense. RCW 9.96.060(8); RCW 9.94A.640(4). The “penalty and disability” language removes the felony conviction as an impediment to vacate the misdemeanor conviction. In fact, this impact of the “penalty and disability” language was addressed in appellate case law. As stated in the case State v. Smith from 2010, the intent of the vacate law is to restore a person to their “pre-conviction status.” The “penalty and disability” language acts to remove “all adverse consequences” that previously existed from the conviction. This language means that once the felony domestic violence conviction is vacated, it can no longer prevent the vacate of a misdemeanor conviction.

Robertson Law is here to help you understand and navigate the vacate laws of Washington State.  Please call or email Robertson Law with any questions you may have about your case.