_______________________________________________
SUBSTITUTE
HOUSE BILL 1174
_______________________________________________
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.
