BILL REQ. #: S-3428.1
State of Washington | 63rd Legislature | 2014 Regular Session |
Read first time 01/15/14. Referred to Committee on Law & Justice.
AN ACT Relating to the restoration of firearms rights; and reenacting and amending RCW 9.96.060.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.96.060 and 2012 c 183 s 5 and 2012 c 142 s 2 are
each reenacted and 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), 9.91.020 (operating a railroad, etc. while
intoxicated), or the offense is considered a "prior offense" under RCW
46.61.5055 and the applicant has had a subsequent alcohol or drug
violation within ten years of the date of arrest for the prior offense;
(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) Every person convicted of prostitution under RCW 9A.88.030 who
committed the offense as a result of being a victim of trafficking, RCW
9A.40.100, promoting prostitution in the first degree, RCW 9A.88.070,
or trafficking in persons under the trafficking victims protection act
of 2000, 22 U.S.C. Sec. 7101 et seq. may apply to the sentencing court
for vacation of the applicant's record of conviction for the
prostitution offense. An applicant may not have the record of
conviction for prostitution 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 offender has been convicted of another crime in this state,
another state, or federal court since the date of conviction; or
(c) The applicant has ever had the record of another prostitution
conviction vacated.
(4)(a) 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. Except as
provided in (b) of this subsection, nothing in this section affects or
prevents the use of an offender's prior conviction in a later criminal
prosecution.
(b) When a court vacates a record of domestic violence as defined
in RCW 10.99.020 under subsection (1) of this section, the state may
not use the vacated conviction in a later criminal prosecution unless
the conviction was for: (i) Violating the provisions of a restraining
order, no-contact order, or protection order restraining or enjoining
the person or restraining the person from going on to the grounds of or
entering a residence, workplace, school, or day care, or prohibiting
the person from knowingly coming within, or knowingly remaining within,
a specified distance of a location (RCW 10.99.040, 10.99.050,
26.09.300, 26.10.220, 26.26.138, 26.44.063, 26.44.150, 26.50.060,
26.50.070, 26.50.130, 26.52.070, or 74.34.145); or (ii) stalking (RCW
9A.46.110).
(5) 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.
(6) 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.