Most felony convictions in the State of Washington can be vacated. Considering the impact a felony conviction has on employment, housing, credit, and various civil liberties, if you are eligible to vacate a conviction you should try. And if you aren’t sure whether you are eligible to have a conviction vacated, you should find out. What follows is a synopsis of the laws regarding vacating felony convictions in Washington. If you have questions, contact us for a consultation. At Milios Defense, we can help you determine your eligibility and quickly and expeditiously vacate eligible felony convictions.
What It Means to Vacate a Conviction
The term vacate tends to be used interchangeably with the term “expunge”. In its simplest terms, vacate means to remove the conviction. In Washington, the court vacates a conviction by allowing a previous finding of guilt (either by way of plea or post trial verdict) to be withdrawn or lifted, a plea of not guilty to be reinstated, and then formally dismisses the charge. And while the fact of the case’s existence is not deleted, evidence of the conviction is. In order to remove all the evidence of a charge, the court would have to allow for that information to be sealed. Sealing Washington criminal records is a different process that presents different challenges altogether.
Eligibility Requirements to Vacate a Felony Conviction
The process and eligibility requirements for vacating felony convictions in Washington were originally developed as part of the Sentencing Reform Act of 1984. Recently in 2019, Washington State passed the New Hope Act that made significant changes to that law in terms of which convictions could be vacated and under what conditions. The current eligibility requirements one must meet are as follows:
- No criminal charges may be pending in any court – A person applying to have a felony conviction vacated cannot have a pending criminal charge of any kind in any state or federal court.
- A certificate of discharge has been filed – the Department of Corrections is to file a “certificate of discharge” acknowledging the successful completion of the terms of the felony sentence. Prior to the New Hope Act, the waiting period did not begin until after the certificate was filed. Now it is enough that the certificate is on file regardless of the time of filing. Still, the certificate does need to have been filed. If it has not, the DOC will need to be contacted before the motion to vacate is made.
- Certain offenses excluded – Not all felony convictions are eligible to be vacated. Most violent offenses and crimes against persons are excluded. Below is the list of excluded offenses:
- All Class A felonies or any attempt or conspiracy to commit or solicit a Class A felony
- Manslaughter first degree or second degree
- Arson second degree
- Kidnapping second degree
- Indecent Liberties by forcible compulsion
- Assault of a Child second degree or third degree
- Extortion first degree or second degree
- Drive by shooting
- Vehicular Assault
- Vehicular Homicide
- Other crimes against persons as defined in RCW 43.43.830(7)
- Exceptions to excluded offenses – The New Hope Act created some important exceptions to the excluded offenses that had previously been in place. The offenses below are now eligible to be vacated so long as there was no use of firearms or deadly weapons and there was no sexual motivation enhancement:
- Assault second degree
- Assault third degree (so long as not against a law enforcement officer)
- Robbery second degree
- If Class B felony – No criminal convictions of any kind in preceding ten years and ten years since the later of the release from community custody, full or partial confinement or from the sentencing date.
- If Class C felony – No criminal convictions of any kind in preceding five years and five years since the later of the release from community custody, full or partial confinement or from the sentencing date.
Procedure to Vacate Felony Conviction
Once eligibility to vacate the conviction has been established, the proper motion and proposed order should be sent along to the appropriate prosecuting attorney’s office. They will review the request and research to make their own determination if you are eligible to vacate. If they agree, they may sign off on the order so that an agreed order can be presented to the court. While it is not a requirement that the prosecutor must agree with the request and sign off on the order, presenting an agreed order to the court can certainly expedite matters. This is probably where having an attorney handle the process would result in the greatest benefit as an agreed order is usually signed off on “ex parte” by the judge with no additional argument being required. Experienced attorneys will know which prosecutors to contact and how best to persuade them into quickly agreeing to the motion to vacate.
If the prosecutor will not sign off on the order, or the court wishes to hear argument, then a motion must be properly noted and the court convinced that all of the above eligibility requirements have been met. If the order is granted it then must be served upon the proper law enforcements agencies so that the information contained in the system can be corrected.
Vacating a felony conviction will have a wide range of positive impacts. All of these stem from the simple fact that you will legally be permitted to say that you were not convicted of the felony offense. If you have any questions about this process, contact us. We have been helping people clear their criminal history for over 25 years.