The process of clearing a criminal record is often generically called “expungement.” However, in Washington State, the correct term for removing a criminal conviction from your criminal history is called “vacation.” When a conviction is “vacated,” the following legal protections apply:

• The court dismisses the information, indictment, complaint, or citation, and vacates the judgment and sentence.
• The guilty finding is reversed, and the charge is dismissed.
• The defendant is released from all penalties and disabilities resulting from the offense.
• The conviction is removed from the defendant's criminal history for purposes of determining a sentence in any subsequent conviction.
• The defendant may state, for “all purposes,” he or she has never been convicted of the crime.
• The vacate order is sent to the WSP and FBI.
• Record of the conviction may not be disclosed to any person except other criminal justice enforcement agencies.

While certain rules apply to determine whether a person qualifies to have a conviction vacated, it is important to remember that any decision to vacate a conviction is discretionary; meaning the judge has the option to deny the request. It is important to be thorough and prepared any time a person seeks to ask a judge to vacate any conviction.

Washington State has several laws dealing with the ability to vacate an adult criminal conviction. Each applies to a specific type of case. Each has its own unique set of factors you must meet to become eligible to vacate a conviction. In most instances, despite statutory eligibility, the judge has the discretion to grant or deny a request to vacate a conviction.

Effective July 28, 2019, a new vacate law goes into effect:

“The New Hope Act”

This new law makes substantial changes to the rules for vacating both felony and misdemeanor conviction records. Below, we describe these changes in detail. Initially, however, it is important to know three things about this new law:

• More felony convictions can be vacated.
• You can (likely) vacate felony convictions sooner.
• You can vacate more than one misdemeanor conviction.

The new vacate law can be broken into four parts.

• Changes are made to the Certificate of Discharge Law.
• Changes are made to the felony vacate law.
• Changes are made to the misdemeanor vacate law.
• Changes are made to the benefits that come from vacating a conviction record.

CERTIFICATE OF DISCHARGE

To vacate any felony conviction, it remains a mandatory requirement that a person must first obtain from the court a Certificate of Discharge. (RCW 9.94A.637). A person qualifies for a Certificate of Discharge once they complete all conditions of sentence. The new law clarifies that under most circumstances either the court or the Department of Corrections (DOC) must take steps to make sure a person receives a Certificate of Discharge. It is also clear that the “effective” date of any Certificate of Discharge must be the actual date the conditions of sentence were completed, even though the court may not learn about it until months or even years later. This can be best described as “retroactive application.” The date of the Certificate of Discharge will always be retroactive to the date the sentence was completed, and not the date the court signs the certificate.

In most situations, however, a person will not be able to rely on the court or DOC to issue the Certificate of Discharge; they will have to get it themselves. The new Certificate of Discharge law helps this process as well. The law allows a person to petition the court for a Certificate of Discharge by providing proof that all sentence conditions were completed, and the Certificate of Discharge must receive the same retroactive date as stated above.

Finally, the new Certificate of Discharge law contains one last change that could help many people. A court may issue a Certificate of Discharge even if a person has not completed all conditions of sentence. (This exception does not apply to legal financial obligations, which must still be paid in full.) Under the new law a person can ask the court to waive an uncompleted non-legal financial obligation condition of sentence for “good cause.” If the court grants this waiver, the “effective” date for the Certificate of Discharge would be either (a) five years after completion of community custody or confinement, or (b) the date legal financial obligations were paid; whichever occurred latest.

The new law does not define what “good cause” might be. In other areas of law this term is generally defined as circumstances beyond a person's control. Over time, courts will have to decide how “good cause” will be defined under this new law.

FELONY VACATE LAW

The new felony vacate law contains two significant changes. First, more felony convictions may be eligible to be vacated. Second, felony convictions may be vacated sooner than under the prior law.

The new vacate law expands the kinds of felony convictions that can be vacated. The law continues to exclude “violent offenses” (RCW 9.94A.030(55) ) and “crimes against persons” (RCW 43.43.830(7)) from being vacated. Now, however, the following convictions can be vacated:

• Assault in the second degree.
• Assault in the third degree.
• Robbery in the second degree.

Certain restrictions apply. For example, no conviction can be vacated if the case involved:

• Use of a firearm.
• Use of a deadly weapon.
• A sexual motivation enhancement.

• In addition, no Assault in the Third Degree conviction can be vacated if the assault was committed against a law enforcement officer.

The new law changes the time requirements for becoming eligible to vacate a felony conviction. In many circumstances this will mean people can vacate their convictions sooner than under the prior vacate law.

First, the new law ends the requirement that a person must wait a certain period of time commencing the date of the Certificate of Discharge to vacate the conviction. (e.g. five years for a class C felony and ten years for a class B felony). While a person is still required to obtain a Certificate of Discharge, there is no longer any nexus between the date of the Certificate of Discharge and the ability to vacate the conviction.

Second, the new law ties all timing requirements for vacating a conviction to a specific date that generally occurs much earlier than the “effective” date for a Certificate of Discharge. This specific date is either (a) release from community custody, (b) release from any confinement, or (c) the date of sentencing, whichever occurred the latest. Commencing this date a person must wait five years to vacate a class C felony conviction and must wait ten years to vacate a class B felony conviction.

Because this change may be confusing, three hypothetical situations are described below:

Hypothetical #1 (date of sentencing): A person is convicted of Theft in the second degree, a class C felony. The person is sentenced to time served and receives no community custody. This person can petition to vacate the conviction as soon as five years after the date of sentencing, assuming all other requirements are met.

Hypothetical #2 (release from confinement): A person is convicted of theft in the first degree, a class B felony. The person is sentenced to sixty days confinement which is converted to work release (partial confinement) and receives no community custody. This person can petition the court to vacate the conviction as soon as ten years after completing work release, assuming all other conditions are met.

Hypothetical #3 (release from community custody): A person is convicted of VUCSA, a class C felony. The person is sentenced, in part, to twelve months of community custody. This person can petition to vacate the conviction as soon as five years after completing community custody, assuming all other conditions are met.

Finally, the new law requires one last timing requirement. A person must establish they have not been convicted of any criminal offense for a specific amount of time leading up to a vacate petition being filed. For class C felonies, a person must show they have not been convicted of any new crimes in the five years preceding the vacate request. For class B felonies, the period of time is ten years.

Again, this may be confusing so two hypothetical situations are described below:

Hypothetical #1 (class C felony): Where a person petitions the court to vacate a class C felony on July 28, 2019, the person must show they have no convictions for other crimes occurring between July 28, 2014, and July 28, 2019.

Hypothetical #2 (class B felony): Where a person petitions the court to vacate a class B felony on July 28, 2019, the person must show they have no convictions for other crimes occurring between July 28, 2009, and July 28, 2019.

MISDEMEANOR VACATE LAW

The new vacate law makes several changes to the rules for vacating a misdemeanor conviction.

• Misdemeanor Failing to Register as a Sex Offender Can Be Vacated: While the statute continues to exclude misdemeanor sex crimes from being vacated (RCW 9A.44); the new law allows a person to vacate the misdemeanor offense of “failing to register” under RCW 9A.44.132.
• You Can Vacate More Than One Misdemeanor Conviction: The new law makes two changes that allow a person to vacate more than one misdemeanor conviction:
  • The new law strikes the old provision that prevented a person from vacating a conviction if a prior conviction had been vacated.
  • The new law strikes the provision that prevented a person from vacating a conviction if the person had been convicted of a new crime since the date of conviction. Now, the rule requires that a person must not have been convicted of a new crime in the three years preceding the petition to vacate. (Note: the law still requires a person to wait three years, from the date all sentence conditions were completed, to vacate. (Five years for DV crimes.)

Because these changes may be confusing, three hypothetical situations are provided below:

Hypothetical #1 (prior vacated conviction): A person is convicted of a felony offense and has the conviction vacated. Afterwards, the person is convicted of misdemeanor theft. Under the old law the person could not vacate the misdemeanor theft conviction. Under the new law they can.

Hypothetical #2 (subsequent conviction): A person is convicted of misdemeanor criminal trespass and two years later is convicted of misdemeanor Driving While License Suspended (DWLS). Under the old law the person could not vacate the criminal trespass conviction. Under the new law the person can vacate the conviction three years after the date of conviction for the DWLS.

Hypothetical #3 (multiple convictions): A person is convicted, at different times, of misdemeanor theft, criminal trespass, and DWLS. Under the old law the person could only vacate the last occurring conviction. Under the new law the person can vacate all three so long as all conditions for each individual case have been completed.

• Expired Restraining Orders Do Not Delay Vacating Convictions: The new law states that a person can vacate a conviction so long as no restraining orders actively restrain the person. The law strikes the old provision that required a person to wait five years after any restraining order had expired in order to vacate. However, the new law retains the five year wait period for restraining orders if the person was found to have violated the order.

Because this change may be confusing, two hypothetical situations are provided below:

Hypothetical #1 (expired restraining order): A person is convicted of reckless driving (not originally filed as a DUI) and later becomes a respondent to a domestic violence restraining order. Under the old law the person had to wait until five years after the order expired before being eligible to vacate the conviction. Under the new law the person must only wait until the order expires.

Hypothetical #2 (violation of order): Under the same scenario as above, a person must continue to wait for five years to expire in order to vacate the reckless driving conviction if the person was ever found to have violated the restraining order.

CHANGES TO WHAT "HAVING A CONVICTION VACATED" MEANS

Once a criminal conviction has been vacated, several important benefits accrue to the individual. The person is released from all penalties and disabilities resulting from the offense and the fact the person has been convicted of the offense shall not be included in the person's criminal history for purposes of determining a sentence in any subsequent conviction. For all purposes, including responding to questions on employment or housing applications, a person whose conviction has been vacated may state that he or she has never been convicted of that crime. A conviction that has been vacated may not be disseminated or disclosed by the Washington State Patrol or local law enforcement agency, except it may be disclosed to other criminal justice enforcement agencies.

However, the new vacate law contains one significant alteration to the benefits of vacating a conviction. For convictions that occur after July 28, 2019, certain vacated convictions may be used as a prior conviction in one important situation. It may be used by a prosecutor to charge what is called a “recidivist offense.” A “recidivist offense” means a felony offense where a prior conviction for the same offense of other specified offense is an element of the crime. Certain recidivist offenses include:

• Assault in the fourth degree where domestic violence is pleaded and proven, RCW 9A.36.041(3);
• Cyberstalking, RCW 9.61.260 (3)(a).
• Harassment, RCW 9A.46.020 (2)(b)(i).
• Indecent exposure, RCW 9A.88.010 (2)(c).
• Stalking, RCW 9A.46.110 (5)(b) (i) and (iii).
• Telephone harassment, RCW 9.61.230 (2)(a).
• Violation of a no-contact or protection order, RCW 26.50.110 (5).

A copy of the New Hope Act can be found by clicking here. [SHB 1041]. If you have any other questions about your case, please contact our office.

RCW 3.66.067 – Deferred Sentences

Recently, the Washington State Supreme Court ruled that persons who have a criminal conviction dismissed pursuant to a deferred sentence must still vacate the conviction record to have it removed from their criminal history. State v. Haggard, 195 Wn.2d 544 (2020).

Whether a defendant merits a deferred sentence is irrelevant … . It is not absurd to require additional effort to obtain vacation under RCW 9.96.060 than merely a trial court's discretion … . The language of RCW 9.96.060 plainly requires a defendant who has a dismissed conviction to separately seek vacation of that conviction in order for it to be omitted from his or her criminal history. State v. Haggard, at 562. 

Entry of a deferred sentence constitutes an “adjudication of guilt,” and thus is a “conviction” under Washington law despite the fact the conviction may be later dismissed by the court. State v. Cooper, 176 Wn.2d 678 (2013). Under the Criminal Records Privacy Act (RCW 10.97) a dismissal following a deferral of sentence is defined as a “conviction record.” "Conviction record" means criminal history record information relating to an incident which has led to a conviction or other “disposition adverse to the subject.” RCW 10.97.030(3). "Conviction or other disposition adverse to the subject" means any disposition of charges other than: (a) A decision not to prosecute; (b) a dismissal; or (c) acquittal; with the following exceptions, which shall be considered dispositions adverse to the subject: An acquittal due to a finding of not guilty by reason of insanity and a dismissal by reason of incompetency, pursuant to chapter 10.77 RCW; and a dismissal entered after a period of probation, suspension, or deferral of sentence. RCW 10.97.030(2).

Washington appellate courts have observed that, “[N]othing in the [deferred sentence] statute implies that a conviction is automatically deleted or expunged from the criminal record after dismissal.” State v. Gallaher, 103 Wn. App. 842 (2000). Vacation of a conviction requires express statutory authority. State v. Noel, 101 Wn. App. 623 (2000). A conviction may only be removed from a person's criminal history through the vacate statutes or a governor's pardon. RCW 9.94A.030. 

The deferred sentence statute states;

“After a conviction, the court may … [defer] the sentence of the defendant and may place the defendant on probation for a period of no longer than two years and prescribe the conditions thereof. … During the time of the deferral, the court may, for good cause shown, permit a defendant to withdraw the plea of guilty and to enter a plea of not guilty, and the court may dismiss the charges. …” RCW 3.66.067.

                                                                           

The vacate statutes provides substantially greater legal protections absent from the deferred sentence statute. The remedies following vacation of conviction include:

• The court dismisses the information, indictment, complaint, or citation, and vacates the judgment and sentence.
• The defendant is released from all penalties and disabilities resulting from the offense.
• The conviction is removed from the defendant's criminal history for purposes of determining a sentence in any subsequent conviction.
• The defendant may state, for “all purposes,” he or she has never been convicted of the crime.
• The vacate order is sent to the arresting law enforcement agency, WSP (WATCH), and FBI.
• Record of the conviction may not be disclosed by the WSP or arresting agency to any person except other criminal justice enforcement agencies.

Perhaps the most frustrating aspect of this is that for most people with a deferred sentence dismissal, the conviction still appears on a Washington State Patrol background check (WATCH). The only remedy to prohibit the WSP from disclosing the record is to vacate the conviction.

RCW 10.97.060 – Deletion of Non-Conviction Records

Washington law provides a limited right to delete certain records related to cases which did not lead to a conviction. Under this law, law enforcement records, as opposed to court records, may be “deleted” so long as the case was dismissed or a conviction was not obtained and a specific amount of time has passed.

For cases where a conviction was not obtained, a person must wait at least two years to request deletion of records. For cases where no charges were filed, a person must wait three years. For all cases, the person must show that the dismissal was not the result of a probationary or suspended sentence, or a deferral of sentence.

Furthermore, the law enforcement agency has the discretion to deny a request to delete records if any of the following circumstances are present:

1. The disposition was a deferred prosecution or similar diversion of the alleged offender;
2. The person who is the subject of the record has had a prior conviction for a felony or gross misdemeanor;
3. The individual who is the subject of the record has been arrested for or charged with another crime during the intervening period.

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