1392-S AMS HEAV S3010

1392-S AMS HEAV S3010.2

SHB 1392 - S AMD - 520

By Senators Heavey, Kline, McCaslin, Costa and Honeyford

Strike everything after the enacting clause and insert the following:

"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 clear 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 or indictment against the applicant.

(2) An applicant may not have the record of conviction for a misdemeanor or gross misdemeanor offense cleared 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 attempt to commit a sex offense as defined in RCW 9.94A.030; (e) the offense was any misdemeanor or gross misdemeanor violation, including attempt, of chapter 9.68 (Obscenity and pornography) or 9.68A (Sexual exploitation of children) RCW; (f) the applicant has been convicted of a new crime in this state, another state, or federal court since the date the applicant completed all of the terms of the sentence for the misdemeanor or gross misdemeanor offense; (g) the offense was a domestic violence offense as defined in RCW 10.99.020, and less than five years have passed since the date the offender successfully completed all terms of his or her sentence, including probation. After the applicable time limit, the court may only grant the motion to vacate a domestic violence conviction if, upon review of the police report, any evidence from the prosecution or the defense, a statement from the victim, and a review of the defendant's behavior since the commission of the crime, the court finds that the defendant is no longer a danger to the public and has been rehabilitated; or (h) less than five years have passed since the date the applicant completed all of the terms of the sentence for the misdemeanor or gross misdemeanor offense.

(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, except that the fact that the person had been convicted of the offense may be used in any subsequent criminal prosecution consistent with any other legal use and may be included in the person's criminal history for purposes of determining a sentence in any subsequent conviction. For all other purposes, including responding to questions on employment applications, a person whose conviction has been vacated may state that the person has never been convicted of that crime.

(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 that the person making the motion is indigent at the time the motion is brought.

(5) Any conviction that is vacated under this section shall be treated as nonconviction data as defined in chapter 10.97 RCW for the purposes of the defendant's criminal history. The clerk of the court in which the motion is brought shall transmit the order vacating the conviction to the Washington state patrol. The Washington state patrol shall transmit the order vacating the conviction to the federal bureau of investigation.

(6) No person may seek or be granted a vacation of record of conviction for an offense committed after the date upon which the person received a vacation of record of conviction for any other offense.

Sec. 2. RCW 9.94A.230 and 1987 c 486 s 7 are each amended to read as follows:

(1) Every offender who has been discharged under RCW 9.94A.220 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 in its discretion clear the record of conviction by: (a)(i) Permitting the offender to withdraw the offender's plea of guilty and to enter a plea of not guilty; or ((~~(b)~~)) (ii) if the offender has been convicted after a plea of not guilty, ((by)) the court setting aside the verdict of guilty; and ((~~(c) by~~)) (b) the court dismissing the information or indictment against the offender.

(2) An offender may not have the record of conviction cleared if any one of the following is present: (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 class C felony domestic violence offense as defined in RCW 10.99.020, and less than five years have passed since the date the applicant was discharged under RCW 9.94A.220 or the offense was a class B felony domestic violence offense as defined in RCW 10.99.020, and less than ten years have passed since the date the applicant was discharged under RCW 9.94A.220. After the applicable time limit, the court may only grant the motion to vacate a domestic violence conviction if, upon review of the police report, any evidence from the prosecution or the defense, a statement from the victim, and a review of the defendant's behavior since the commission of the crime, the court finds that the defendant is no longer a danger to the public and has been rehabilitated and the offense is not otherwise excluded by (b) or (d) of this subsection; (d) the offense was a crime against persons as defined in RCW 43.43.830; ((~~(d)~~)) (e) 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.220; ((~~(e)~~)) (f) 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.220; ((~~and (f)~~)) or (g) the offense was a class C felony and less than five years have passed since the date the applicant was discharged under RCW 9.94A.220.

(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, including responses to questions when making application for employment. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.

Sec. 3. RCW 9.95.240 and 1957 c 227 s 7 are each amended to read as follows:

(1) Every defendant who has fulfilled the conditions of his of her probation for the entire period thereof, or who ((~~shall have~~)) has been discharged from probation prior to the termination of the period thereof, may ((at any time prior to the expiration of the maximum period of punishment for the offense for which he has been convicted be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right in his probation papers: PROVIDED, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed)) apply to the sentencing court for a vacation of the defendant's record of conviction. If the court finds the defendant meets the tests prescribed in subsection (2) of this section, the court may in its discretion clear the record of conviction by: (a)(i) Permitting the defendant to withdraw the defendant's plea of guilty and to enter a plea of not guilty; or (ii) if the defendant has been convicted after a plea of not guilty, the court setting aside the verdict of guilty; and (b) the court dismissing the information or indictment against the defendant.

(2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the defendant 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 felony crime against persons as defined in RCW 43.43.830; (d) the defendant has been convicted of a new crime in this state, another state, or federal court since the date the defendant successfully completed probation; (e) the offense is a class B felony and less than ten years have passed since the date the defendant successfully completed probation; (f) the offense was a class C felony and less than five years have passed since the date the defendant successfully completed probation; (g) the offense was a misdemeanor or gross misdemeanor and less than five years have passed since the date the defendant successfully completed probation; or (h) the offense was a misdemeanor or gross misdemeanor and operated to interrupt the washout of a class B felony under RCW 9.94A.360 and less than ten years have passed since the date of the conviction for the misdemeanor or gross misdemeanor.

(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, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime, including responses to questions when making application for employment. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal case.

(4) No person may seek or be granted a vacation of record of conviction for an offense committed after the date upon which the person received a vacation of record of conviction for any other offense.

(6) 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 that the person making the motion is indigent at the time the motion is brought.

Sec. 4. RCW 13.50.050 and 1997 c 338 s 40 are each amended to read as follows:

(1) This section governs records relating to the commission of juvenile offenses, including records relating to diversions.

(2) The official juvenile court file of any alleged or proven juvenile offender shall be open to public inspection, unless sealed pursuant to subsection ((~~(11)~~)) (12) of this section.

(3) All records other than the official juvenile court file are confidential and may be released only as provided in this section, RCW 13.50.010, 13.40.215, and 4.24.550.

(4) Except as otherwise provided in this section and RCW 13.50.010, records retained or produced by any juvenile justice or care agency may be released to other participants in the juvenile justice or care system only when an investigation or case involving the juvenile in question is being pursued by the other participant or when that other participant is assigned the responsibility for supervising the juvenile.

(5) Except as provided in RCW 4.24.550, information not in an official juvenile court file concerning a juvenile or a juvenile's family may be released to the public only when that information could not reasonably be expected to identify the juvenile or the juvenile's family.

(6) Notwithstanding any other provision of this chapter, the release, to the juvenile or his or her attorney, of law enforcement and prosecuting attorneys' records pertaining to investigation, diversion, and prosecution of juvenile offenses shall be governed by the rules of discovery and other rules of law applicable in adult criminal investigations and prosecutions.

(7) The juvenile court and the prosecutor may set up and maintain a central record-keeping system which may receive information on all alleged juvenile offenders against whom a complaint has been filed pursuant to RCW 13.40.070 whether or not their cases are currently pending before the court. The central record-keeping system may be computerized. If a complaint has been referred to a diversion unit, the diversion unit shall promptly report to the juvenile court or the prosecuting attorney when the juvenile has agreed to diversion. An offense shall not be reported as criminal history in any central record-keeping system without notification by the diversion unit of the date on which the offender agreed to diversion.

(8) Upon request of the victim of a crime or the victim's immediate family, the identity of an alleged or proven juvenile offender alleged or found to have committed a crime against the victim and the identity of the alleged or proven juvenile offender's parent, guardian, or custodian and the circumstance of the alleged or proven crime shall be released to the victim of the crime or the victim's immediate family.

(9) Subject to the rules of discovery applicable in adult criminal prosecutions, the juvenile offense records of an adult criminal defendant or witness in an adult criminal proceeding shall be released upon request to prosecution and defense counsel after a charge has actually been filed. The juvenile offense records of any adult convicted of a crime and placed under the supervision of the adult corrections system shall be released upon request to the adult corrections system.

(10) In any case in which an information has been filed pursuant to RCW 13.40.100 or a complaint has been filed with the prosecutor and referred for diversion pursuant to RCW 13.40.070, the person the subject of the information or complaint may file a motion with the court to have the court vacate its order and findings, if any, and, subject to subsection ((~~(22)~~)) (23) of this section, order the sealing of the official juvenile court file, the social file, and records of the court and of any other agency in the case.

(11) The court has the discretion to grant the motion to seal records made pursuant to subsection (10) of this section if it finds that for class B offenses other than sex offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition:

(a) The person has spent five consecutive years in the community without committing another offense or crime that results in conviction in this state, another state, or federal court;

(b) There are no criminal charges against the person pending in any court of this state, another state, or federal court;

(c) Through credible evidence presented to the court that the person has a present career path that is impeded by the record of the courts order and findings;

(d) That the person is twenty-one years of age or older; and

(e) The person has lived an exemplary life since the court's order and findings.

(12) The court shall grant the motion to seal records made pursuant to subsection (10) of this section if it finds that:

(a) For class B offenses other than sex offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent ten consecutive years in the community without committing any offense or crime that subsequently results in conviction. For class C offenses, gross misdemeanors, and misdemeanors, other than sex offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent five consecutive years in the community without committing any offense or crime that subsequently results in conviction;

(b) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense;

(d) The person has not been convicted of a class A or sex offense; and

(e) Full restitution has been paid.

((~~(12)~~)) (13) The person making a motion pursuant to subsection (10) of this section shall give reasonable notice of the motion to the prosecution and to any person or agency whose files are sought to be sealed.

((~~(13)~~)) (14) If the court grants the motion to seal made pursuant to subsection (10) of this section, it shall, subject to subsection ((~~(22)~~)) (23) of this section, order sealed the official juvenile court file, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual. Any record that is sealed under this section shall be treated as nonconviction data as defined in chapter 10.97 RCW for the purposes of the defendant's criminal history. The clerk of the court in which the motion is brought shall transmit the order sealing the record to the Washington state patrol. The Washington state patrol shall transmit the order sealing the record to the federal bureau of investigation.

((~~(14)~~)) (15) Inspection of the files and records included in the order to seal may thereafter be permitted only by order of the court upon motion made by the person who is the subject of the information or complaint, except as otherwise provided in RCW 13.50.010(8) and subsection ((~~(22)~~)) (23) of this section.

((~~(15)~~)) (16) Any adjudication of a juvenile offense or a crime subsequent to sealing has the effect of nullifying the sealing order. Any charging of an adult felony subsequent to the sealing has the effect of nullifying the sealing order for the purposes of chapter 9.94A RCW.

((~~(16)~~)) (17) A person eighteen years of age or older whose criminal history consists of only one referral for diversion may request that the court order the records in that case destroyed. The request shall be granted, subject to subsection ((~~(22)~~)) (23) of this section, if the court finds that two years have elapsed since completion of the diversion agreement.

((~~(17)~~)) (18) If the court grants the motion to destroy records made pursuant to subsection ((~~(16)~~)) (17) of this section, it shall, subject to subsection ((~~(22)~~)) (23) of this section, order the official juvenile court file, the social file, and any other records named in the order to be destroyed.

((~~(18)~~)) (19) The person making the motion pursuant to subsection ((~~(16)~~)) (17) of this section shall give reasonable notice of the motion to the prosecuting attorney and to any agency whose records are sought to be destroyed.

((~~(19)~~)) (20) Any juvenile to whom the provisions of this section may apply shall be given written notice of his or her rights under this section at the time of his or her disposition hearing or during the diversion process.

((~~(20)~~)) (21) Nothing in this section may be construed to prevent a crime victim or a member of the victim's family from divulging the identity of the alleged or proven juvenile offender or his or her family when necessary in a civil proceeding.

((~~(21)~~)) (22) Any juvenile justice or care agency may, subject to the limitations in subsection ((~~(22)~~)) (23) of this section and (a) and (b) of this subsection, develop procedures for the routine destruction of records relating to juvenile offenses and diversions.

(a) Records may be routinely destroyed only when the person the subject of the information or complaint has attained twenty-three years of age or older, or is eighteen years of age or older and his or her criminal history consists entirely of one diversion agreement and two years have passed since completion of the agreement.

(b) The court may not routinely destroy the official juvenile court file or recordings or transcripts of any proceedings.

((~~(22)~~)) (23) No identifying information held by the Washington state patrol in accordance with chapter 43.43 RCW is subject to destruction or sealing under this section. For the purposes of this subsection, identifying information includes photographs, fingerprints, palmprints, soleprints, toeprints and any other data that identifies a person by physical characteristics, name, birthdate or address, but does not include information regarding criminal activity, arrest, charging, diversion, conviction or other information about a person's treatment by the criminal justice system or about the person's behavior.

((~~(23)~~)) (24) Information identifying child victims under age eighteen who are victims of sexual assaults by juvenile offenders is confidential and not subject to release to the press or public without the permission of the child victim or the child's legal guardian. Identifying information includes the child victim's name, addresses, location, photographs, and in cases in which the child victim is a relative of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. Information identifying a child victim of sexual assault may be released to law enforcement, prosecutors, judges, defense attorneys, or private or governmental agencies that provide services to the child victim of sexual assault.

(25) All costs incurred by the court and probation services shall be paid by the person making the motion to seal the record under subsection (10) of this section unless a determination is made that the person making the motion is indigent at the time the motion is brought."

SHB 1392 - S AMD - 520

By Senators Heavey, Kline, McCaslin, Costa and Honeyford

On page 1, line 1 of the title, after "conviction;" strike the remainder of the title and insert "amending RCW 9.94A.230, 9.95.240, and 13.50.050; and adding a new section to chapter 9.96 RCW."