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SUBSTITUTE HOUSE BILL 1174
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Passed Legislature - 2001 Regular Session
State of Washington 57th Legislature 2001
Regular Session
By
Read first time 02/27/2001. Referred to
Committee on .
Authorizing vacation of
records of conviction for misdemeanor and gross misdemeanor offenses.
AN ACT Relating to
vacation of records of conviction for misdemeanor and gross misdemeanor
offenses; and adding a new section to chapter 9.96 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. A new section is added
to chapter 9.96 RCW to read as follows:
(1) Every person
convicted of a misdemeanor or gross misdemeanor offense who has completed all
of the terms of the sentence for the misdemeanor or gross misdemeanor offense
may apply to the sentencing court for a vacation of the applicant's record of
conviction for the offense. If the court finds the applicant meets the tests
prescribed in subsection (2) of this section, the court may in its discretion
vacate the record of conviction by: (a)(i) Permitting the applicant to
withdraw the applicant's plea of guilty and to enter a plea of not guilty; or
(ii) if the applicant has been convicted after a plea of not guilty, the court
setting aside the verdict of guilty; and (b) the court dismissing the
information, indictment, complaint, or citation against the applicant and
vacating the judgment and sentence.
(2) An applicant may
not have the record of conviction for a misdemeanor or gross misdemeanor
offense vacated if any one of the following is present: (a) There are any
criminal charges against the applicant pending in any court of this state or
another state, or in any federal court; (b) the offense was a violent offense
as defined in RCW 9.94A.030 or an attempt to commit a violent offense; (c) the
offense was a violation of RCW 46.61.502 (driving while under the influence),
46.61.504 (actual physical control while under the influence), or 9.91.020
(operating a railroad, etc. while intoxicated); (d) the offense was any
misdemeanor or gross misdemeanor violation, including attempt, of chapter 9.68
RCW (obscenity and pornography), chapter 9.68A RCW (sexual exploitation of
children), or chapter 9A.44 RCW (sex offenses); (e) the applicant was convicted
of a misdemeanor or gross misdemeanor offense as defined in RCW 10.99.020, or
the court determines after a review of the court file that the offense was
committed by one family member or household member against another, or the
court, after considering the damage to person or property that resulted in the
conviction, any prior convictions for crimes defined in RCW 10.99.020, or for
comparable offenses in another state or in federal court, and the totality of
the records under review by the court regarding the conviction being considered
for vacation, determines that the offense involved domestic violence, and any
one of the following factors exist:
(i) The applicant has
not provided written notification of the vacation petition to the prosecuting
attorney's office that prosecuted the offense for which vacation is sought, or
has not provided that notification to the court;
(ii) The applicant has
previously had a conviction for domestic violence. For purposes of this
subsection, however, 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;
(iii) The applicant has
signed an affidavit under penalty of perjury affirming that the applicant has
not previously had a conviction for a domestic violence offense, and a criminal
history check reveals that the applicant has had such a conviction; or
(iv) Less than five
years have elapsed since the person 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; (f) for any
offense other than those described in (e) of this subsection, less than three
years have passed since the person completed the terms of the sentence,
including any financial obligations; (g) the offender has been convicted of a
new crime in this state, another state, or federal court since the date of
conviction; (h) the applicant has ever had the record of another conviction
vacated; or (i) the applicant is currently restrained, or has 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.
(3) Once the court
vacates a record of conviction under subsection (1) of this section, the person
shall be released from all penalties and disabilities resulting from the
offense and the fact that the person has been convicted of the offense shall
not be included in the person's criminal history for purposes of determining a
sentence in any subsequent conviction. For all purposes, including responding
to questions on employment or housing applications, a person whose conviction
has been vacated under subsection (1) of this section may state that he or she
has never been convicted of that crime. Nothing in this section affects or
prevents the use of an offender's prior conviction in a later criminal
prosecution.
(4) All costs incurred
by the court and probation services shall be paid by the person making the
motion to vacate the record unless a determination is made pursuant to chapter
10.101 RCW that the person making the motion is indigent, at the time the
motion is brought.
(5) The
clerk of the court in which the vacation order is entered shall immediately
transmit the order vacating the conviction to the Washington state patrol
identification section and to the local police agency, if any, which holds
criminal history information for the person who is the subject of the
conviction. The Washington state patrol and any such local police agency shall
immediately update their records to reflect the vacation of the conviction, and
shall transmit the order vacating the conviction to the federal bureau of
investigation. A conviction that has been vacated under this section may not
be disseminated or disclosed by the state patrol or local law enforcement
agency to any person, except other criminal justice enforcement agencies.
