Vacating and Sealing Adult Criminal Convictions

 Vacating Adult Criminal Convictions

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:

  1. The court dismisses the information, indictment, complaint, or citation, and vacates the judgment and sentence.
  2. The guilty finding is reversed, and the charge is dismissed.
  3. The defendant is released from all penalties and disabilities resulting from the offense.
  4. The conviction is removed from the defendant's criminal history for purposes of determining a sentence in any subsequent conviction.
  5. The defendant may state, for “all purposes,” he or she has never been convicted of the crime.
  6. The vacate order is sent to the WSP and FBI.
  7. 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.

RCW 9.94A.640 – Felony Convictions

Washington law allows a person to vacate most class B and C felonies. All class A felonies, violent crimes, and crimes against persons may not be vacated. The Court must issue a Certificate of Discharge before you can vacate a felony conviction. For class B felonies, you must wait ten (10) years to vacate after receiving a Certificate of Discharge. For class C felonies, you must wait five (5) years. During this time you must not have any criminal convictions of any kind. It is possible to vacate more than one felony conviction.

RCW 9.94A.637 – Certificate of Discharge

Under Washington law, you are required to first obtain a Certificate of Discharge from the court before you can vacate a felony conviction. A Certificate of Discharge is not issued for misdemeanor or gross misdemeanor offenses. A Certificate of Discharge restores the right to vote. It does not restore the right to possess a firearm.

A person becomes eligible to receive a Certificate of Discharge once he or she establishes they have complied with and completed all conditions of sentence. This includes payment of all legal financial obligations such as restitution. In some cases, a person may be eligible to receive a Certificate of Discharge prior to the termination of community supervision.

In most circumstances, where a person has completed all conditions of sentence while still under DOC supervision, DOC will request the Certificate of Discharge. But this is not always the case. Also, there may be cases where a person does not become eligible for the Certificate of Discharge until after supervision ends. In these cases, the person will have to make the request for a Certificate of Discharge. Recent case law states that a person may ask the court to back-date the Certificate of Discharge to the earliest date the person qualified for the Certificate of Discharge. (State v. Johnson, 148 Wn. App. 33 (2008))

Under recent changes to the Certificate of Discharge statute, a person can request the Certificate of Discharge even though the court has issued a No Contact Order as part of the sentence. In these cases, a person must request the court to issue a separate No Contact Order along with the Certificate of Discharge.

In some cases, a person may qualify for a Certificate of Discharge even though he or she has not paid all legal financial obligations. For offenses committed before July 1, 2000, the court may only enforce payment of legal financial obligations for a 10 year period of time, unless the State makes a specific request to extend this enforcement period. Once this enforcement period ends the State may not object to issuance of the Certificate of Discharge for non-payment of legal financial obligations. (State v. Gossage, 165 Wn.2d 1 (2008))

RCW 9.96.060 – Misdemeanor and Gross Misdemeanor Convictions

This law was enacted in 2000 to give persons with a misdemeanor or gross misdemeanor conviction the same opportunity as persons with a felony to vacate a conviction. Generally, a person must wait three (3) years after completing all conditions of sentence to become eligible to vacate a conviction. For domestic violence offenses, you must wait five years. Certain crimes, like DUI's and sex crimes, cannot be vacated. You do not have to obtain a Certificate of Discharge to vacate a misdemeanor or gross misdemeanor conviction. A subsequent conviction can make you ineligible to vacate a prior conviction. You may not vacate a misdemeanor or gross misdemeanor conviction if you have previously vacated another conviction.

RCW 9.95.240 – Felony Convictions before 1984

Recent Supreme Court decisions have clearly established that persons with certain felony convictions occurring before July 1, 1984, may also seek vacation of their convictions. (In re Carrier, 173 Wn.2d 791 (2012)) Prior to 1984, the vacate statute referenced above (RCW 9.94A.640) did not exist. Instead, persons who received a probationary sentence (or a suspended sentence) could ask the Court to dismiss the conviction at a later time. In 2003, the Legislature changed these laws to allow persons who received a probationary or suspended felony sentence the same opportunity to vacate a conviction as those persons who were convicted after 1984. Now, the rules for vacation as found in RCW 9.94A.640 apply to persons who received either a probationary or suspended felony sentence before July 1, 1984.

RCW 3.66.067 – Deferred Sentences

For most misdemeanor offenses, the opportunity exists to ask the judge to impose a “deferred sentence” as opposed to a suspended sentence. The act of deferring sentence seems very similar to vacating the conviction – at the end of a deferred sentence the court dismisses the conviction. But in reality a deferred sentence offers no protection from disclosure of the underlying criminal conviction.

Deferring sentence does not change the fact a person has been convicted of a crime. Recently, our Supreme Court held that the fact a person received a deferred sentence meant the person was still “convicted” of the underlying crime. (State v. Cooper, 176 Wn.2d 678 (2013))

The simple fact is that vacation of a conviction is very different from deferring sentence. Courts have noted that a deferred sentence does not imply or convey the legal act of vacation. (State v. Gallaher, 103 Wn. App 842 (2000)) This means that even after a deferred sentence is entered and the case is dismissed, record of the conviction can still be shown on a criminal history check through the Washington State Patrol (WATCH).

The only way to prevent this kind of disclosure 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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