If you have been arrested for an offense – even if charges are never filed and you are not ultimately convicted of the offense – you have a criminal record. Both arrests and convictions are public records, and can easily be accessed by anyone willing to pay a small fee.

In Washington State, if you meet certain criteria, you can have your conviction vacated, criminal record sealed and/or expunged, and your civil rights restored. We routinely help clients in these areas.

If you have a conviction vacated, you can legally say that you have not been convicted of that crime.  Before you can have a conviction vacated, however, the following criteria must be met:

Felonies

RCW 9.94A.640 provides the procedure for vacating a felony conviction. You may not vacate felony convictions considered “violent offenses” under RCW 9.94A.030; or “crimes against persons” as defined in RCW 43.43.830. To be eligible to vacate other felony convictions, you must:

  • Not have criminal charges pending in any state;
  • Not have been convicted of a new crime since you received the certificate of discharge for the conviction you are attempting to vacate;
  • If you are attempting to vacate a Class B felony, ten years must have passed since you were issued the certificate of discharge;
  • If you are attempting to vacate a Class C felony, five years must have passed since you were issued the certificate of discharge.

Misdemeanors and Gross Misdemeanors

RCW 9.96.060 provides the procedure for vacating misdemeanor and gross misdemeanor convictions. Certain convictions cannot be vacated, including convictions for DUI, convictions for a “violent offense” (as defined in RCW 9.94A.030), and convictions for sex offenses charged under RCW chapters 9.68, 9.68A, or 9A.44.

To be eligible to vacate other misdemeanor or gross misdemeanor convictions, you must:

  • Not have criminal charges pending in any state;
  • Not have been convicted of a new crime since the date you were convicted of the crime which you are seeking to have vacated;
  • Not have ever had another conviction vacated;
  • Not be currently restrained, or have 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;
  • If you were convicted of a domestic violence offense, you must never have been convicted of any other domestic violence offense and five years must have passed since you completed the terms of the sentence, including payment of fines;
  • If you were convicted of Negligent Driving in the first degree, Reckless Driving, or Reckless Endangerment, and the original charge was DUI, in addition to the above criteria, ten years must have passed since you completed the terms of the sentence;
  • If you were convicted of any other misdemeanor or gross misdemeanor, three years must have passed since you completed the terms of the sentence, including payment of fines.

There are many complicated issues associated with vacating convictions.  If you have any questions about this process, please contact us.

If you were arrested but never charged with a crime, or if you were charged but the case was dismissed and a conviction was never obtained, you are potentially eligible to have your arrest record deleted. This process results in the non-conviction data being deleted from the records of law enforcement. RCW 10.97.060 governs the expungement of non-conviction data. To be eligible to have your record expunged:

  • Two years must have passed since “the record became nonconviction data as a result of the entry of a disposition favorable to the defendant,”; or three years have passed since the date of arrest or issuance of a citation, if charges were not pursued;
  • You must not have been previously convicted of a felony or gross misdemeanor.  A prior misdemeanor conviction does not prevent you from having your record sealed;
  • You must not have been arrested or charged with a new crime during the intervening period.

There are many complicated issues associated with expunging criminal records. If you have any questions about this process, please contact us.

If you are convicted of a crime, your freedom can be restricted in many ways. In addition to jail time, probation, and mandatory fines, you may lose your right to vote and the right to possess firearms. In many situations, your rights should have been restored, but because the court has not received notice from the Department of Corrections or from the clerk’s office that you have fulfilled all obligations of your sentence, it has not issued a Certificate of Discharge.

Issuance of the Certificate of Discharge is extremely important because it authorizes the restoration of certain civil rights such as the right to vote, and it starts the clock running on when you may be eligible to have your conviction vacated. The court will only issue a Certificate of Discharge when it has received notice that you have fulfilled all the terms of your sentence, including any term of confinement, community custody, and payment of fines. Depending on the facts of your case, you may be responsible for notifying the court that you have completed the terms of your sentence. Often, people are unaware of this responsibility.  However, if you have completed all the terms of your sentence and otherwise have a clean record, courts are generally willing to issue a Certificate of Discharge with an effective date retroactive to when it should have been issued.

Update:  On July 6, 2015, Washington State Court of Appeals, Division I, in the case of State v. Porter, held that the existence of a no-contact order imposed in the criminal case is not a “sentence requirement” which prevents the issuance of a Certificate of Discharge.  Thus, if you have fulfilled the terms of your sentence, including serving any jail time imposed, paying all fines, and completing any period of community custody, a Certificate of Discharge should enter even if a no-contact order is still in effect in connection with the criminal case.

To be sure that the court has received the proper notice, and that your rights are properly restored, you should contact us.

If you were convicted of any felony or any domestic violence gross misdemeanor, it is a Class C felony for you to possess a firearm. Even if you have completed all the terms of your sentence, your right to possess firearms is not automatically restored. You must separately petition the court to restore that right. The court may grant the petition depending on the offense you were convicted of, and the amount of time that has passed since that conviction. For help restoring firearm rights, please contact us.

Update: On May 18, 2015, the United States Supreme Court issued an opinion, Henderson v. United States, in which the Court held that it was lawful for a convicted felon to transfer his lawfully possessed firearms to a third party. This decision is significant, as it allows a person convicted of a felony to transfer his/her firearms to a third party so that they may be sold, rather than have the firearms forfeited.