Vacating and Sealing Criminal Records in Washington

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What follows is a general summary of the law in Washington as it pertains to the vacating and sealing of criminal records.  It is not intended as a substitute for legal advice.   The law in this area is vague, contradictory, and riddled with exceptions.

Persons convicted of certain crimes in Washington are eligible to have their criminal records vacated and sealed.  Vacating and sealing are very different procedures.  Vacating a record simply means that a guilty plea or guilty verdict is converted to a not guilty plea and the charge is then dismissed.  The person can then truthfully answer on a job application or financial statement that he or she has not been convicted of the crime that has been vacated.

Furthermore a conviction that is vacated may not be used to enhance punishment if the person is later convicted of another crime.  But even if a conviction is vacated that does not mean the absence of public record that the person was once convicted of the crime.   Criminal convictions even if vacated remain part of the permanent court record unless the record is sealed.  

Credit reporting agencies and other private agencies that compile and disseminate public records often misreport the data they obtain.  Recently a former client applied for an apartment rental and truthfully answered on the application that she had not been convicted of a crime – one that had been recently vacated.  However, her rental application was turned down because the credit-reporting agency incorrectly informed the landlord that her record showed the presence of a misdemeanor conviction.  The only way to have conviction taken out of the public record completely is to have the record sealed.

There are two types of misdemeanor sentences in Washington – suspended and deferred.  A defendant receiving a deferred sentence may ask the court to change the plea to not guilty and dismiss the charge at the end of the period of deferral, provided that he or she has satisfied all the conditions of the sentence such as completion of court ordered treatment and payment of costs and fines.  The period of deferral is up to two years for the majority of misdemeanor offenses and five years for driving under the influence.  Most district and municipal courts do not require an appearance by the defendant and will automatically vacate a deferred sentence at the end of the period of deferral. 

A misdemeanor defendant receiving a deferred or suspended sentence may petition the court to vacate the conviction and sentence pursuant to RCW 9.96.090.   Certain crimes are ineligible to be vacated under this procedure, including driving under the influence, and sex offenses.  A person can apply to vacate the conviction under 9.96.090 after three years from completion of the sentence for most misdemeanors and after five years for offenses involving domestic violence. The Court must notify the State Patrol when misdemeanor convictions have been vacated under this statute.  The State Patrol must then update its records to reflect the fact that the conviction has been vacated and must refrain from disseminating the record to anyone other than criminal justice enforcement agencies.

Persons convicted of felonies in Washington automatically receive a certificate of discharge upon completion of their sentence.  The certificate of discharge has the effect restoring certain civil rights including the rights to vote, run for public office and serve on juries.  However, this does not mean that the right to possess a firearm is restored.  Persons who have not been convicted of a violent offense, a sex offense or a Class A felony may petition the court to have their right to posses firearms restored after five crime free years in the community following the date of conviction.   Crime free means no intervening criminal convictions and no pending charges.    

Upon receipt of a certificate of discharge, persons who have not been convicted of a violent felony or a crime against the person may petition the court to have a felony conviction vacated after 10 crime free years in the case of a Class B felony and certain drug offenses and after five crime free years in the community in the case of a Class C felony.   Under the applicable statute, the court has no discretion and must vacate the conviction provided that the crime of is not one, which causes the applicant to be ineligible, and the applicant has spent the requisite number of crime free years in the community.    

            General Rule 15 provides the only means in Washington by which a court record of a criminal conviction can be sealed.  Otherwise, the record remains public forever.  The person seeking to have the record sealed may request a hearing with the court where the record is maintained, after providing notice to the prosecutor, the victim, if a victim can be located, and the agency responsible for probation or community supervision.  The person seeking to have the record sealed carries a very heavy burden in court and must demonstrate a “compelling privacy or safety concern that outweighs the public interest in access to the court record.”  It is not enough to simply show that the conviction has been vacated.  There must be a strong showing of something else such as threats, harassment, or inability to obtain employment.   The court is required to make detailed findings as to the reason why the record is being sealed.  The record can only be sealed for a certain period of time.  

            The bottom line is it's easy enough to get a conviction vacated depending on the nature of the conviction and the passage of time.  It's also easy enough to have gun rights restored.  Sealing the record is much more difficult.  Some would argue that it's almost meaningless to have your conviction vacated if there is still is a public record showing that you were once convicted of that offense.   Telling your prospective employer that you have never been convicted of a crime may not do you a great deal of good if a there is a public court record that says otherwise. 

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Some things are time sensitive. Do you have a hearing date scheduled? Did you just receive a grand jury subpoena? Is some detective knocking at your door and asking you to come to the police station for an interview? If so, give us a call right away.

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