Many people are confused about Washington State expungement. How do you go about clearing your criminal records in Washington State? What is it called? Recordkeeping can be complicated, in part because the process has different names depending upon what you want cleared. Also, there are different rules depending upon whether you are dealing with court records, Department of Licensing records or arrest records held by law enforcement agencies. Below is a summary of possible avenues for relief – NOTE THAT MAJOR CHANGES EFFECTIVE IN JULY 2019 WILL CHANGE THE QUALIFICATIONS FOR VACATING CONVICTIONS – SEE SUBSTITUTUE HOUSE BILL 1041.
Removing Non-Conviction Data in Washington State
For individuals with “non-conviction data,” the Washington State expungement process may be an option. This means removing information relating to an arrest from a law enforcement record. “Non-conviction data” means a situation where no adverse consequences were imposed. Examples include a charge dismissed by the prosecutor or court before trial, or a “not guilty” verdict following trial. It does not include deferred sentences where a guilty plea is entered but later removed.
You can remove non-conviction data by submitting an application to the Washington State Patrol, including fingerprints and a copy of the court record. You can’t do this immediately after the case is dismissed or you are found “not guilty.” You must wait two years from the date of dismissal without any new criminal arrests or convictions (or three years from the date of arrest if no charges were filed). You also must not have a gross misdemeanor or felony conviction record from any other offense. If the Washington State expungement request is granted, the State Patrol will remove all information related to the arrest. This procedure does not remove or seal court records or Department of Licensing records.
Vacating a Washington State Criminal Record
If you have been convicted of a misdemeanor or felony offense, then you cannot remove the record of arrest in Washington State. You may, however, qualify to vacate your conviction. When you vacate a conviction, a written request must be made to the court and you must meet certain requirements.
There are some offenses that are not eligible to be vacated, such as a DUI, and there are a variety of other requirements a person must meet. For example, for misdemeanors, at least three years must have passed following the end of any probationary period following conviction with no new arrests or convictions (for domestic violence offenses the law requires five years and for charges reduced from DUI, the wait includes 10 years from the original violation date with no new alcohol-related offenses). For felony convictions, the waiting period could be 5-10 years, depending on the offense.
A request to vacate a record is discretionary, meaning a judge does not have to grant it, even if a person otherwise qualifies under the statute. If a request to vacate is granted, the effect is that the previous guilty plea/finding is withdrawn and the charge is dismissed. Thereafter, a person can legally and honestly say they have not been convicted of the offense and would not need to disclose it as a conviction on future applications, etc.
Vacating an offense can be helpful, but it is not as perfect solution. For instance, the record of the case is not deleted. There will still be a court record of everything that occurred in the case unless the record is also sealed (see below). Also, the Department of Licensing does not recognize vacated convictions, so if the offense was a driving offense DOL will still maintain the conviction information on its own records.
Sealing a Washington State Court Record
The only way to ensure that the public will not have any access to information in a court record is to have it sealed. This is a difficult process because, generally speaking, there is a predisposition to having open access to court records. In other words, courts get suspicious of people trying to hide things. A request to seal, like vacating a conviction, is discretionary and the person must show a compelling privacy interest that outweighs the public policy of open access.
Depending upon the court and the judge, as well as the reason you are requesting to have your records sealed, sealing a records can be very difficult to accomplish.
Washington State Juvenile Records
There are different rules for cases occurring in juvenile court, and it is generally easier to vacate, seal and expunge records of juvenile arrests/convictions. Recent changes to the law mandate courts to seal some records automatically, but older cases may still require a request by the defendant.
If you want to clean up your criminal record, I would be happy to guide you through the process. Some things, like Washington State expungement, you can do on your own. Others, like vacating and sealing a record, you will need an attorney’s help. Contact me for more information.