Anybody who has been convicted of a crime knows the detrimental effects of that conviction can linger long after the case has been resolved. These are what we in the law call the “collateral consequences” of having criminal history and they can range from the loss of ability to enter Canada to deportation or exclusion if you’re not an American citizen. But the can also include less obvious collateral effects like to difficulty in getting a job, renting an apartment or applying for a loan. This article will address what can be done to clean up your non-DUI misdemeanor and gross misdemeanor history.
Vacating a misdemeanor or gross misdemeanor criminal conviction – what some sates call “expungement” – is governed in Washington by RCW 9.96.060. This statute delineates just what convictions can be vacated, how long you have to wait to before you can have them vacated, how many you can vacate (just one for now) and the procedures that need to be followed. Felony vacations are governed by RCW 9.94a.640 and will be discussed in my next blog entry.
RCW 9.96.060(1) states “(1) Every person convicted of a misdemeanor or gross misdemeanor offense who has completed all of the terms of the sentence for the misdemeanor or gross misdemeanor offense may apply to the sentencing court for a vacation of the applicant’s record of conviction for the offense.” Completing all of the terms of the sentence includes serving any jail time or jail alternative including electronic home monitoring or detention (EHM or EHD), payment of legal financial obligations (LFOs) which include fines, court costs and fees and restitution to the victim, if any. If the court finds that the person is eligible for vacation that the court can set aside the verdict, if the person had been found guilty at trial, or permit the person to withdraw their guilty plea and enter a plea of not guilty and dismissing the citation which initiated the charge.
You Can Only Vacate One Misdemeanor (at least for now)
RCW 9.96.060 (2) lists the offenses and which cannot be vacated, the condition which must be satisfied to vacate certain convictions and other requirements. The basic rules are that three years have passed since completion of the sentence requirements, there are no pending charges anywhere and the person has never had a conviction vacated before. This means that currently, a person is only eligible to vacate a single misdemeanor or gross misdemeanor in a lifetime. This stands in stark contrast to the Felony vacation statute which, in theory, permits unlimited vacations of felony convictions. I have no explanation for this seemingly bizarre incongruity between these two statutes since one would think it would be the other way round, allowing multiple misdemeanor vacates and limiting felonies to just one, but alas, that is not the case. HOUSE BILL 1017 would have modified RCW 9.96.060 to permit up to four misdemeanor or gross misdemeanor vacations in a life time so long as certain other time periods and criteria are met. Unfortunately, it did NOT get heard in the last legislative session and is unlikely to get consideration in the upcoming special session. Consider this a call to contact your legislator and ask them to support HB 1017 when it comes up again next year.
DUIs
A person may not vacate a Driving under the Influence (DUI) or Physical Control charge. Period. This is why getting a reduction to a lesser, vacatable charge like Negligent Driving in the First Degree or Reckless Driving is so important. While most charges require only a three year period after completion of all terms of the sentence, convictions that result from a charge that was reduced from a DUI or Physical Control require a ten year period.[1] However the 10 year period runs from the date of arrest, not the date of completion of the sentence. This is so because those reductions count as prior convictions for the purposes of future DUIs which have a 7 year look back period.
Domestic Violence
Domestic Violence (DV) convictions require a 5 year waiting period following completion of all sentence requirements. In addition, a DV charge cannot be vacated if the person has ever been previously convicted of a charge carrying the DV designation. It is important to note that vacation does not restore the person’s right to possess a firearm which would likely have been lost upon conviction for a DV charge involving the use or threatened use of force. Restoration needs to be sought under a separate petition to the Superior Court and may be barred by Federal law.
Other Charges that can’t be Vacated
Aside from DUI, Physical Control and DV charges where there are prior convictions, RCW 9.96.060 also bars vacation of “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)”.
As is plain to see, cleaning up your misdemeanor or gross misdemeanor history is complicated and, at least for now, very limited. That means you probably will need the assistance of an attorney familiar with all the ins and outs, exceptions and requirements of this arcane statute. Please call or email if I can be of assistance with any post-conviction clean-up including vacating a misdemeanor, gross misdemeanor or felony, restoration of firearm rights or terminating sex offender registration.
[1] Note that vacating a conviction for negligent driving in the first degree or reckless driving will not resolve Canada’s bar for entry after such a conviction although anyone who has waited the required ten years period would be eligible to be “deemed rehabilitated” by Immigration Canada. See http://www.cic.gc.ca/english/information/inadmissibility/conviction.asp
