Our office receives a lot of phone calls this time of year as people resolve to start the year looking into clearing old conviction records.  A common issue that arises is the failure to pay off legal financial obligations in those cases.  This blog will focus on the new laws that are now in effect in Washington State addressing legal financial obligations, and how they may apply to your situation if you have unpaid legal financial obligations.

Legal Financial Obligations (LFO's) simply refers to the monetary penalty imposed following conviction.  LFO's have three general sub-parts: (1) Restitution (money paid for injury or damage to a victim); (2) Costs, fees, fines, and assessments that courts are either required to or have discretion to impose; and finally (3) Any interest that has accrued over time for not paying LFO's.

Effective January 1, 2023, new rules apply to LFO's in Washington State.  These rules now establish circumstances where LFO's may no longer have to be paid, or can be waived or reduced.

RESTITUTION

Superior court felony and misdemeanor conviction – How long can a court enforce payment of restitution? (RCW 9.94A.750): The first thing to determine in these cases is when the offense(s) took place. The date of offense has a huge impact on determining how long a court has jurisdiction over a person to compel payment of restitution.

For offenses committed before July 1, 2000, the court has ten years of jurisdiction to compel payment of restitution.  The court can extend this jurisdiction for an additional ten years, but only if it finds that the defendant is not indigent.  If you have a case that occurred prior to July 1, 2000, court jurisdiction to compel payment of restitution has likely expired, even if the court previously extended jurisdiction an additional ten years.  It is highly likely that any outstanding restitution in these cases can no longer be required to be paid.

For offenses committed after July 1, 2000, the rule is different.  There is no ten year jurisdiction limitation.  Instead, the court retains indefinite jurisdiction to compel payment of restitution.  If you have a case that occurred after July 1, 2000, you will likely be required to pay all restitution.

Superior court felony and misdemeanor conviction – Can any restitution be waived? (RCW 9.94A.750): There is a specific scenario where the court may be able to waive all or some of unpaid restitution.  The court can waive all or some of unpaid restitution if: (1) The defendant is indigent; and (2) The restitution is owed to certain insurers or state agencies.  This provision does not apply to restitution owed to a specific person.

District court misdemeanor conviction – How long can a court enforce payment of restitution? (RCW 3.66.120): The new rules for district court ordered restitution are very similar to the rules for felonies in superior court; with one major distinction.

The general rule is that, regardless when an offense occurred, the court has only ten years of jurisdiction to compel payment of restitution.  The court can extend this jurisdiction for an additional ten years, but only if it finds that the defendant is not indigent.  If you have a district court case that is more than ten years old, and you have unpaid restitution, the court may no longer have any jurisdiction to compel you to pay.

District court misdemeanor conviction – Can any restitution be waived? (RCW 3.66.120): The district court also has limited authority to waive all or some unpaid restitution.  The court can waive all or some of unpaid restitution if: (1) The defendant is indigent; and (2) The restitution is owed to certain insurers or state agencies.  This provision does not apply to restitution owed to a specific person.

COSTS, FEES, FINES, AND ASSESSMENTS

               For most costs, fees, fines, and assessments (i.e. non-restitution LFO's), the court has limited jurisdiction to compel payment.  Furthermore, most can be waived or reduced based on whether the defendant is indigent.

Superior court felony and misdemeanor conviction – How long can a court enforce payment non-restitution LFO's? (RCW 9.94A.760): For all non-restitution LFO's (i.e. costs, fees, fines, and assessments) the court has ten years of jurisdiction to compel payment.  The court can extend this jurisdiction for an additional ten years, but only if it finds that the defendant is not indigent.  If you have a case that is more than ten years old, and you have unpaid non-restitution LFO's, the court may no longer have any jurisdiction to compel you to pay.

Felony and misdemeanor conviction – Can any non-restitution LFO's be waived?: The rules vary widely on what can and cannot waived, and the circumstances under which these can be waived.

The Crime Victim Assessment (CVA) cannot be waived or reduced (RCW 10.01.180): The superior court is required to impose this assessment in all superior court convictions.  This assessment is $500 for felony convictions, and $250 for all misdemeanor convictions. RCW 7.68.035.  It cannot be waived or reduced.

Court costs (RCW 10.01.160): Superior and district courts have discretion to order a convicted defendant to pay certain costs associated with the prosecution; such as service of warrants, certain pre-trial monitoring programs, and incarceration.  Courts must not impose these costs at the time of sentencing if the defendant is indigent.  However, if imposed, and the defendant has not paid, the defendant can ask the court to waive payment or convert payment to community service hours if the defendant has become indigent.

Fines, fees, and assessments (RCW 10.01.180; .185): All offenses have a maximum fine that can be imposed, and most offenses have a mandatory minimum fine that must be imposed.  Certain statutes require a court to impose certain fees and assessments based on the nature of the offense.  Courts must not impose these fines, fees, and assessments at the time of sentencing if the defendant is indigent.  However, if imposed, and the defendant has not paid, the defendant can ask the court to waive payment or convert payment to community service hours if the defendant has become indigent.

INTEREST

Interest on restitution (RCW 10.82.090): The court has discretion to waive interest that has accrued on restitution.  To waive interest, the original restitution amount (principal) must be paid in full.  The court also has discretion to waive any interest that accrued on restitution while the defendant was incarcerated.

Interest on non-restitution LFO's (RCW 10.82.090): Since June 7, 2018, courts can no longer impose interest on non-restitution LFO's.  Any interest that accrued prior to that date must be waived by the court.  However, the defendant must file a petition with the court to waive this accrued interest.

INDIGENT

These rules frequently use the term “indigent.” What does this mean?

To be indigent a defendant must meet one of criteria (RCW 10.01.160(3)):

• Receives one of the following types of public assistance:
  • Temporary assistance for needy families.
  • Aged, blind, or disabled assistance benefits.
  • Medical care services pursuant to statute.
  • Pregnant women assistance benefits.
  • Poverty-related veterans' benefits.
  • Food stamps or food stamp benefits transferred electronically.
  • Refugee resettlement benefits.
  • Medicaid, or supplemental security income.
• Receives an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or has household income above 125 percent of the federal poverty guidelines and has recurring basic living costs, as defined by statute, that render the defendant without the financial ability to pay.
• Has been Involuntarily committed to a public mental health facility, is homeless, or is diagnosed as mentally ill pursuant to statute.
• Has other compelling circumstances that exist that demonstrate an inability to pay.

HOW UNPAID LFO'S IMPACT VACATING A CONVICTION

In short, unpaid LFO's will prevent you from vacating a conviction record.  That is why it is important to understand these rules.  The longer you wait to resolve unpaid LFO's, the longer it takes to become eligible to vacate.

For felony offenses, to vacate a conviction you must first obtain a Certificate of Discharge.  You cannot obtain a Certificate of Discharge if LFO's are not paid.  However, once the court's jurisdiction to compel payment of LFO's (even restitution) has expired, the court must issue a Certificate of Discharge. (State v. Gossage.)  In other cases, the ability to waive or reduce the amount of LFO's owed (or the elimination of accrued interest) may make a tremendous impact on being able to pay LFO's and obtain a Certificate of Discharge.

For misdemeanor offenses, to vacate a conviction you must establish you completed all conditions of sentence (including payment of LFO's) and then wait a minimum of three years.  This makes paying LFO's very important. You still have to wait at least three years after you pay all LFO's.  Proving that court jurisdiction to compel payment of LFO's has expired can be instrumental in being able to vacate a conviction.  In other cases, he ability to waive or reduce the amount of LFO's owed (or the elimination of accrued interest) may make a tremendous impact on being able to pay LFO's and start the three year wait period sooner rather than later.

Finally, as mentioned in a prior blog, courts ultimately have discretion to grant or deny a vacate request. Courts must focus their inquiry on the rehabilitation of the defendant after conviction. Payment of LFO's (or at least resolution of all outstanding LFO issues) will be a critical factor for the courts.

As you can see, these rules can become complicated rather quickly. Our job at Robertson Law is to thoroughly review our clients' particular situation, and provide clarity.  We can chart a path for your ultimate success in vacating your conviction records.

If you have questions about your conviction and whether to qualify to have it vacated, please call or email our office.