Can a DUI be an infraction? Is an infraction a violation? What does "violation" mean? These questions had to be addressed recently in a vacate petition our office filed for a client.

The Washington vacate law contains a specific provision for vacating the conviction record for a “prior offense.” A prior offense is a case that started as a DUI and was amended to Negligent Driving first degree or Reckless Driving. A requirement to vacating these convictions is that the defendant must not have any subsequent "drug or alcohol violations" within ten years of the date of arrest for the offense to be vacated.

What does "drug or alcohol violation" mean? It seems obvious that getting another DUI would constitute a drug or alcohol violation. What about possession of a controlled substance? What about providing alcohol to a minor, or serving alcohol in violation of a liquor license or building code? Did the legislature mean it had to be an offense that involved drug or alcohol impairment, or did the legislature mean it could be any offense where drugs or alcohol were merely involved, even if not used? The vacate law provides no answer.

Still, what does "violation" mean? 

Our client's case involved the very unique situation where a subsequent DUI arrest occurred in a different state. Under that state's legal system, a DUI (meaning driving while one's ability to drive is impaired by alcohol) is considered to be a traffic infraction. It is excluded from the definition of a criminal offense.

According to my research, the term "violation" is used seven times in the vacate law. Each time the term is used in the context of describing a "criminal conviction." For example, the law states;

[A]n applicant may not have the record of conviction for a misdemeanor or gross misdemeanor offense vacated if any one of the following is present:

(2)(d) The offense was a violation of RCW 46.61.502 (driving while under the influence), 

(2)(e) The offense was any misdemeanor or gross misdemeanor violation, including attempt, of chapter 9.68 RCW (obscenity and pornography), chapter 9.68A RCW (sexual exploitation of children), or chapter 9A.44 RCW (sex offenses);

A general rule of statutory construction is that a word used multiple times in a statute should should be given the same definition each time it is used. Using this rule, the only plausible meaning to give "violation" is that it refers to a criminal conviction. Otherwise, the law doesn't make any sense. Afterall, you can only vacate a criminal conviction; you cannot vacate any disposition less than that. "Violation" has to mean "conviction for a crime."

The client was convicted of DUI in the other state. But the conviction was for an "infraction," not a crime. In our view this meant the client did not have a subsequent drug or alcohol violation because violation meant being convicted of a crime.

This was a truly unique issue for the court to resolve. Fortunately, the court agreed with our interpretation of the law and granted the vacate. This meant a lot to the client who had worked hard to turn their life around, and needed the vacate for employment reasons.

 It would have been easy to dismiss the idea of trying to vacate this client's case. We didn't. Not every vacate petition will be simple or straightforward to present to the court. Some cases take work. If you have questions about your case, we are here to answer them.

Please call or email Robertson Law with any questions you may have about your case.