BILL REQ. #: S-3215.1
State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/11/12. Referred to Committee on Judiciary.
AN ACT Relating to vacating records; and amending RCW 9.96.060 and 9.94A.640.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.96.060 and 2001 c 140 s 1 are each amended 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;)) The applicant has ever had the record of another conviction
vacated; or
(h)
(((i))) (h) 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.
Sec. 2 RCW 9.94A.640 and 2006 c 73 s 8 are each amended to read
as follows:
(1) Every offender who has been discharged under RCW 9.94A.637 may
apply to the sentencing court for a vacation of the offender's record
of conviction. If the court finds the offender meets the tests
prescribed in subsection (2) of this section, the court may clear the
record of conviction by: (a) Permitting the offender to withdraw the
offender's plea of guilty and to enter a plea of not guilty; or (b) if
the offender has been convicted after a plea of not guilty, by the
court setting aside the verdict of guilty; and (c) by the court
dismissing the information or indictment against the offender.
(2) An offender may not have the record of conviction cleared if:
(a) There are any criminal charges against the offender 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; (c) the
offense was a crime against persons as defined in RCW 43.43.830; (d)
((the offender has been convicted of a new crime in this state, another
state, or federal court since the date of the offender's discharge
under RCW 9.94A.637; (e))) the offense is a class B felony and less
than ten years have passed since the date the applicant was discharged
under RCW 9.94A.637; (((f))) (e) the offense was a class C felony,
other than a class C felony described in RCW 46.61.502(6) or
46.61.504(6), and less than five years have passed since the date the
applicant was discharged under RCW 9.94A.637; or (((g))) (f) the
offense was a class C felony described in RCW 46.61.502(6) or
46.61.504(6) and less than ten years have passed since the applicant
was discharged under RCW 9.94A.637.
(3) Once the court vacates a record of conviction under subsection
(1) of this section, 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 the offender shall be released from all penalties and disabilities
resulting from the offense. For all purposes, including responding to
questions on employment applications, an offender whose conviction has
been vacated may state that the offender 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.