Vacating a Prior Criminal Conviction

Washington law permits the vacation of some felony and misdemeanor convictions. Unfortunately, the law does not automatically vacate your conviction! If you want your prior conviction vacated, the following information will assist you in deciding whether the law applies.

WHAT IS THE CRITERIA?

You must meet the following criteria to convict your criminal conviction: (1) The offender has completed all the terms of his or her sentence, including financial obligations, and more than 3-10 years have passed since completion (3 years for misdemeanors, 5 years for Class C felonies and 10 years for Class B felonies); (2) There are no criminal charges pending against you in any court of this state or another state, or in any federal court; (3) You have not been convicted of a new crime in this state, another state, or federal court since the date you were sentenced on the crime you wish to have vacated; (4) You have never had the record of another conviction vacated; (5) You are not currently restrained, and have not been restrained within five years prior to the vacation application, by a domestic violence protection order, a no-contact order, an anti-harassment protection order, or a civil restraining order which restrains one party from contacting the other party; and (6) The conviction you are seeking to have vacated is not for one of the following crimes: Prostitution (with some exceptions), DUI, Physical Control DUI, any prior offenses amended from DUI and/or involving operating a motor vehicle while under the influence of intoxicants, sex offenses, obscenity, pornography and/or violent offenses. Domestic violence crimes can be vacated, however they need special attention.

CAN DOMESTIC VIOLENCE CRIMES BE VACATED?

Yes. However, if the crime you are seeking to have vacated involved domestic violence, you must (1) Provide the prosecuting attorney’s office that prosecuted you with timely notice of your motion and declaration for order vacating conviction and file the original notice with the court; (2) You must not have been convicted of any other domestic violence offense arising out of any other incident (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), and (3) Five years have elapsed since you 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.

COMPLETING THE PROPER FORMS.

If you can satisfy each of the requirements with respect to the conviction you are asking the court to vacate, your next step is to have your attorney complete the form CrRLJ 09.0100, Motion and Declaration for Order Vacating Conviction. This form will allow the court to determine whether you are eligible to have your conviction vacated. If you are asking the court to vacate your prostitution conviction/s, and you were a victim of trafficking under state or federal law of promoting prostitution in the first degree, or of promoting commercial sexual abuse of a minor, you must also complete form CrRLJ 09.0120, Prostitution Conviction Attachment, and attach it to the motion.

REVIEWING THE COURT FILE.

You may want to review the court file or the court docket for the offense you are asking the court to vacate to obtain information you need to fill out the form. Some counties may require you to obtain copies of your criminal history records and attach them to your motion. Read the local court rules or contact the clerk of the court where you will file your motion to find out if this requirement, or any other local requirement, applies to you. Once you have completed and signed the motion and declaration form and the attachment, if it applies, make at least two copies.

SCHEDULE A HEARING.

The next step is to schedule a hearing for the motion for order vacating conviction. To schedule a hearing, contact the clerk of the court where you were sentenced and ask for the date and time for the hearing. Then complete the form that court uses to schedule a hearing. Make at least two copies of the notice. File the original motion and declaration for order vacating conviction, prostitution conviction attachment, if it applies, and notice document. On the same day that you file those documents with the clerk of the court, you must also provide a copy of the documents to the prosecuting attorney’s office that prosecuted you.To notify the prosecuting attorney’s office of the hearing, you may also use form CrRLJ 09.0150, Notice of Motion for Order Vacating Conviction. If you use this form, file the original with the clerk of the court. You must also provide a copy of the notice to the prosecuting attorney’s office at the same time that you provide a copy of the motion, declaration, and attachment. Keep a copy of the notice, the motion, the declaration, and any attachments for your information.

WHAT HAPPENS AT THE HEARING?

On the day of the scheduled hearing, the judge will hear your motion for order vacating conviction on the day scheduled for the hearing. You will need to be available to attend the hearing. If the motion is granted, the judge will complete an order vacating your conviction. The clerk of the court will send a copy of the order to the Washington State Patrol and to the local law enforcement agency, if any, which holds criminal history information about you.

WHAT ARE THE EFFECTS?

Under RCW 9.94A.640(3), once the court vacates a conviction, 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 regarding employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. However, the Prosecutor can still use the vacated prior conviction in a later criminal prosecution as impeachment evidence if the defendant testifies at trial.

Additional resources provided by attorney Alexander Ransom: