Vacate Your Criminal Convictions

Anyone who has had to live with a criminal conviction knows how difficult it can make your life. You are constantly reminded of your mistakes every time you apply for a job, fill out a rental application, or are trying to get more education or training. Whether you are eligible to clean up your criminal history is mostly a matter of time and having no new criminal convictions.

Whether a person is eligible to have their criminal convictions vacated (or undone) is based on specific Washington state statutes. Please note that Washington does not use the phrase "expungement" like many other states. The proper "post conviction relief" term is vacate.

For most individuals, you either meet the criteria or you don't. For a select few it can be a bit more complicated and may require additional steps in order for you to meet the eligibility requirements of the statute. This is where having a knowledgeable attorney familiar with vacating criminal convictions can save you money, time, and a huge headache.

In this section we will explore how to vacate a criminal conviction, what the eligibility requirements are, and some common questions and headaches that arise.

Whether you are attempting this on your own (not recommended) or hiring an attorney (recommended) the first step is to order a copy of your WATCH report from the Washington State Patrol (WSP). This is the official record of your arrests and criminal convictions and the first thing you will need in order to see if you are eligible to vacate any criminal convictions. There is a small fee of $10-$15. You can obtain a WATCH report from the WSP here.

If at any point in your research you wish to speak with a member of our legal team,

please call us at 253-383-3328 or email us at Office@Williamawhitelaw.com.

Reasons to vacate a criminal conviction

There are a number of important reason a person may want to vacate their past criminal convictions. Most people do this for a specific reason like trying obtain a specific job, clearing up their record, or applying for schools or certifications. Some people have a more emotional reason and clearing up their record of a past criminal conviction helps them overcome past mistakes often attached to a difficult period in their life. Whatever your reason, there are concrete benefits to vacating past criminal convictions. Some of these being:

Legally annuls the conviction
Can truthfully state on an application that you have never been convicted of...
No longer on the WATCH report or the FBI database
No longer subject to any penalties or disqualifications due to the conviction
The conviction cannot be used to enhance a sentence but it can be used in a later criminal prosecution.

NOTE: Vacating a criminal conviction will NOT restore your firearm rights. That is a separate process that our firm can also help you with. You can find more about restoring your gun rights here.

Are Deferred Sentences considered convictions?

If you entered into a deferred sentence, or similar type of program that requires a guilt finding, it is generally still considered a "conviction" for record keeping purposes, including public dissemination. This applies even if the result of your successful completion resulted in a dismissal of the charges.

RCW 10.97.030(4) - Washington State Criminal Records Privacy Act defines a conviction or adverse disposition to include "a dismissal entered after a period of probation, suspension, or deferral of sentence."

Thus, a charge that is dismissed after a successful completion of a deferred sentence program will still show up on you WATCH report until it is vacated. However, if you completed a Stipulated Order of Continuance (SOC), a Pre-trial Diversion Agreement (PDA), or a similar pre-trial agreement that did not require a guilty plea or finding of guilt, these should not show up on your WATCH report, but may show up elsewhere.

Vacating misdemeanors

RCW 9.96.060 is the controlling statute for vacating misdemeanor or gross misdemeanor offenses. Please not that by law, you can only vacate 1 misdemeanor OR gross misdemeanor in your lifetime. You can vacate as many felony offenses as you are eligible. Thus, choosing to vacate a misdemeanor or gross misdemeanor is an important decision.

The following misdemeanors are NOT eligible to be vacated:

Sex offenses, sexual exploitation of children, obscenity and pornography. This includes an "Attempt" convictions of any of these crimes.
DUI, Physical Control, or operating a railroad/vessel (BUI) while under the influence.

Note: If you were ever charged with a DUI/Physical Control charge but later plead guilty to an amended charge, like Negligent Driving 1st or Reckless Driving, you are eligible to have that conviction vacated. However, you will not be eligible until 10 years after you have completed all the necessary requirements discussed. The reason for this 10 year period is due to the look back period for Felony DUIs. If you are unsure whether you qualify it's always worth you time to speak with an attorney experienced in vacating convictions to see if you are eligible.

Let's look at the statute.

RCW 9.96.060

(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. If the court finds the applicant meets the tests prescribed in subsection (2) of this section, the court may in its discretion vacate the record of conviction by: (a)(i) Permitting the applicant to withdraw the applicant's plea of guilty and to enter a plea of not guilty; or (ii) if the applicant has been convicted after a plea of not guilty, the court setting aside the verdict of guilty; and (b) the court dismissing the information, indictment, complaint, or citation against the applicant and vacating the judgment and sentence.

(2) An applicant may not have the record of conviction for a misdemeanor or gross misdemeanor offense vacated if any one of the following is present:

(a) There are any criminal charges against the applicant pending in any court of this state or another state, or in any federal court;

(b) The offense was a violent offense as defined in RCW 9.94A.030 or an attempt to commit a violent offense;

(c) The offense was a violation of RCW 46.61.502 (driving while under the influence), 46.61.504 (actual physical control while under the influence), 9.91.020 (operating a railroad, etc. while intoxicated), or the offense is considered a "prior offense" under RCW 46.61.5055 and the applicant has had a subsequent alcohol or drug violation within ten years of the date of arrest for the prior offense;

(d) 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);

(e) The applicant was convicted of a misdemeanor or gross misdemeanor offense as defined in RCW 10.99.020, or the court determines after a review of the court file that the offense was committed by one family member or household member against another, or the court, after considering the damage to person or property that resulted in the conviction, any prior convictions for crimes defined in RCW 10.99.020, or for comparable offenses in another state or in federal court, and the totality of the records under review by the court regarding the conviction being considered for vacation, determines that the offense involved domestic violence, and any one of the following factors exist:

(i) The applicant has not provided written notification of the vacation petition to the prosecuting attorney's office that prosecuted the offense for which vacation is sought, or has not provided that notification to the court;

(ii) The applicant has previously had a conviction for domestic violence. For purposes of this subsection, however, if the current application is for more than one conviction that arose out of a single incident, none of those convictions counts as a previous conviction;

(iii) The applicant has signed an affidavit under penalty of perjury affirming that the applicant has not previously had a conviction for a domestic violence offense, and a criminal history check reveals that the applicant has had such a conviction; or

(iv) Less than five years have elapsed since the person completed the terms of the original conditions of the sentence, including any financial obligations and successful completion of any treatment ordered as a condition of sentencing;

(f) For any offense other than those described in (e) of this subsection, less than three years have passed since the person completed the terms of the sentence, including any financial obligations;

(g) The offender has been convicted of a new crime in this state, another state, or federal court since the date of conviction;

(h) The applicant has ever had the record of another conviction vacated; or

(i) The applicant is currently restrained, or has been restrained within five years prior to the vacation application, by a domestic violence protection order, a no-contact order, an antiharassment order, or a civil restraining order which restrains one party from contacting the other party.

(3) Subject to RCW 9.96.070, every person convicted of prostitution under RCW 9A.88.030 who committed the offense as a result of being a victim of trafficking, RCW 9A.40.100, promoting prostitution in the first degree, RCW 9A.88.070, promoting commercial sexual abuse of a minor, RCW 9.68A.101, or trafficking in persons under the trafficking victims protection act of 2000, 22 U.S.C. Sec. 7101 et seq. may apply to the sentencing court for vacation of the applicant's record of conviction for the prostitution offense. An applicant may not have the record of conviction for prostitution vacated if any one of the following is present:

(a) There are any criminal charges against the applicant pending in any court of this state or another state, or in any federal court, for any crime other than prostitution; or

(b) The offender has been convicted of another crime, except prostitution, in this state, another state, or federal court since the date of conviction.

(4) Every person convicted prior to January 1, 1975, of violating any statute or rule regarding the regulation of fishing activities, including, but not limited to, RCW 75.08.260, 75.12.060, 75.12.070, 75.12.160, 77.16.020, 77.16.030, 77.16.040, 77.16.060, and 77.16.240 who claimed to be exercising a treaty Indian fishing right, may apply to the sentencing court for vacation of the applicant's record of the misdemeanor, gross misdemeanor, or felony conviction for the offense. If the person is deceased, a member of the person's family or an official representative of the tribe of which the person was a member may apply to the court on behalf of the deceased person. Notwithstanding the requirements of RCW 9.94A.640, the court shall vacate the record of conviction if:

(a) The applicant is a member of a tribe that may exercise treaty Indian fishing rights at the location where the offense occurred; and

(b) The state has been enjoined from taking enforcement action of the statute or rule to the extent that it interferes with a treaty Indian fishing right as determined under United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), or Sohappy v. Smith, 302 F. Supp. 899 (D. Oregon 1969), and any posttrial orders of those courts, or any other state supreme court or federal court decision.

(5) Once the court vacates a record of conviction under this section, the person shall be released from all penalties and disabilities resulting from the offense and the fact that 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 under this section may state that he or she has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.

(6) All costs incurred by the court and probation services shall be paid by the person making the motion to vacate the record unless a determination is made pursuant to chapter 10.101 RCW that the person making the motion is indigent, at the time the motion is brought.

(7) The clerk of the court in which the vacation order is entered shall immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of the conviction. The Washington state patrol and any such local police agency shall immediately update their records to reflect the vacation of the conviction, and shall transmit the order vacating the conviction to the federal bureau of investigation. A conviction that has been vacated under this section may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies.

Eligibility Requirements

An applicant must meet certain requirements regardless of whether the conviction was for a Domestic Violence (DV) or Non-DV offense:

No new criminal convictions
No new pending criminal charges (WA state, other states, or Federal Court)
You are not currently restrained by an court order and you have not been restrained within the last 5 years. This includes no contact orders, domestic violence protection order, anti-harassment order, or a civil restraining order.

However, the timelines for eligibility break down are different between Non-Domestic Violence crimes and Domestic Violence (DV) crimes.

Non-DV Crimes: 3 years have passed since the end of ALL conditions of sentence. This includes your probation time and all fines have been paid. Let's look at two examples:

Ex. 1 - Convicted of a Non-DV crime in 2002. 2 years of bench probation, plus ordered to pay fines. You pay all your fines before the 2 year probation is up, and you have no other problems that extend your probation time. This means the 3 year clock starts to run at the end of your 2 year probation period, or 2004.

Ex. 2 - Convicted of Non-DV crime in 2002. 2 years bench probation, plus ordered to pay fines. This time you were unable to pay off all your fines before your probation was up. You paid off all your fines 3 years after the conviction, in 2005. Thus, the 3 year clock, would begin to run in 2005, not 2004, as in the first example.

DV Crimes: 5 years after completion of all conditions of sentence. This includes your probation time and all fines have been paid.
NOTE: You are NOT eligible if you have had a previous domestic violence conviction. However, if multiple DV charges arise out of the same incident, you may still be eligible to vacate both.

See the above examples but apply a 5 year timeline instead of 3 years.

Remember that vacating a conviction is always discretionary for the judge who hears the motion and can be objected to by the government. This is another reason that hiring an experienced attorney familiar with these types of motions is important. We are familiar with what prosecutors and judges are looking for and can present the best possible information to increase the chance of the judge granting the request.

Vacating a Felony

Ironically, vacating a felony can often be easier than vacating a misdemeanor. In addition, you are not limited to only vacating one conviction, you can vacate multiple convictions as long as each qualifies. This is due to the Constitutional rights you lose when convicted of a felony.

RCW 9.94a.640 is the controlling statute:

Vacation of offender's record of conviction.

(1) Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender's record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender's plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.

(2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the offender pending in any court of this state or another state, or in any federal court; (b) the offense was a violent offense as defined in RCW 9.94A.030; (c) the offense was a crime against persons as defined in RCW 43.43.830; (d) the offender has been convicted of a new crime in this state, another state, or federal court since the date of the offender's discharge under RCW 9.94A.637; (e) the offense is a class B felony and less than ten years have passed since the date the applicant was discharged under RCW 9.94A.637; (f) the offense was a class C felony, other than a class C felony described in RCW 46.61.502(6) or 46.61.504(6), and less than five years have passed since the date the applicant was discharged under RCW 9.94A.637; or (g) the offense was a class C felony described in RCW 46.61.502(6) or 46.61.504(6).

(3) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender's criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.

Eligibility Requirements

An applicant must meet certain requirements in order to be eligible to vacate a felony conviction. If you intend to vacate multiple convictions, each one must qualify independently.

Eligible to have Felony vacated if:

No pending criminal charges in any court (WA, out of state, Federal)
No new criminal convictions in any court (WA, out of state, Federal) since the offenders discharge

Convictions that CANNOT be vacated:

Violent offenses as defined by the Sentencing Reform Act (SRA); RCW 9.94A.030(53)
Crimes against persons or children as defined in RCW 43.43.830(7)
Felony DUI or Physical Control

All other convictions CAN be vacated, if:

A Class B Felony - 10 years after the issuance of the certificate of discharge
A Class C Felony - 5 years after the issuance of the certificate of discharge

Note: A certificate of discharge is issued by the Department of Corrections (DOC) after all conditions of the sentence have been completed, including payment of the Legal Financial Obligations (LFOs).

Special Note: If you have been convicted of a new crime after your felony but a certificate of discharge was never issued for that felony, you may still be eligible to have your felony vacated. This is very fact specific to each person, but an experienced attorney has many tools and procedures at their disposal than a person unfamiliar with this practice area.

A Note on Gun Rights:

Please be aware that vacating a felony conviction will not automatically restore your gun rights. You will have to go through a separate process which is controlled by a different statute. We are able to handle your gun rights restoration as well. Most of our clients will hire us to vacate convictions and restore firearm rights at the same time as there is some cross over of resources.

You can find more information about restoring your gun rights here.

If you or a loved one is interested in having your criminal convictions vacated please give us a call at 253-383-3328 or email us at Office@Williamawhitelaw.com so we can get started today.