A criminal conviction can come with a lot of negative consequences above and beyond the fine you may be required to pay or the jail time you may be required to serve. Your criminal history may bar you from certain jobs, hinder you in obtaining housing, block you from getting into certain schools or obtaining student loans, affect your gun rights, voting rights, travel to Canada, or cause you to be harassed by law enforcement.
There are several ways in which a competent criminal defense attorney can assist you even after you are convicted. Summarized below are several things to keep in mind after you have been convicted of a crime.
Although Washington does not provide for “expunging” a criminal record, “vacation” of a criminal conviction is available for adults convicted of most crimes. Juvenile records may be sealed or destroyed in certain circumstances. Vacation of a conviction is a powerful tool for you because the effect is to “unconvict” you by permitting a withdrawal of your guilty plea (or setting aside the guilty verdict after trial), dismissing the charge, and vacating the judgment and sentence. The major benefit to you is that, by statute, for all purposes, including responses to questions on employment or housing applications, you may state that you have never been convicted of that crime.
Vacating a Misdemeanor. In order to qualify for vacation of an adult misdemeanor, you must apply to the court that sentenced you originally. You may not have any criminal charges pending in any jurisdiction. You may not vacate a DUI or misdemeanor sex offense, although you can vacate a DUI that has been reduced to a Reckless Driving or Negligent Driving charge. You may not have been convicted of any crime subsequently, or had any other records vacated. Three years must have passed since the latter of the end of probation, time all fines are paid, or when restitution paid. Finally, you must have had no restraining or anti-harassment orders within 5 years of application for vacation.
In a domestic violence case, there are additional requirements. The waiting period os 5 years instead of three. Special notice provisions apply. You may not have been convicted of any other domestic violence crimes at any time. You can learn more about vacating adult misdemeanor cases by talking with your criminal defense attorney or looking at RCW 9.96.060.
Vacating a Felony. Some felony crimes can also be vacated pursuant to RCW 9.94A.640. These crimes include Theft, Unlawful Possession of a Controlled Substance, Malicious Mischief, and Taking a Motor Vehicle, among others. The test for eligibility is similar to that in a misdemeanor case — you may not have any current charges, and violent offenses and “crimes against a person” may not be vacated. The key differences are that (1) the waiting period is longer — five years for class C felonies and 10 years for class B charges; and (2) you might be able to vacate an earlier conviction even where there is a subsequent conviction, in some instances.
Vacated records will not be made available by law enforcement, although they will still be available to them internally. Court dockets will still show the case, however, and thus the case may appear on certain internet search engines. The remedy for this problem is to “seal” the court records.
General Rule 15(c)(2) governs whether or not court records may be sealed. That rule allows a court to seal records if, and only if, privacy or safety concerns are identified that outweigh the public interest in public access to the information. This is a somewhat vague standard, and your criminal defense attorney will assist you to develop facts that can persuade a judge to exercise his or her power under GR 15 and seal your court file. If successful, the only information available to the public will be the cause number, the type of charge (criminal), your name, and the notation “V” if vacated and “DV” if the case involved domestic violence. Sealing will make it more difficult for internet background searches to find the records, although it is still possible they will show up.
For juvenile records, sealing is more liberally granted. A juvenile court has much broader power to seal information about juvenile cases than in adult cases. A juvenile record can be sealed for multiple convictions, for any misdemeanor, and any non-sex class B or C felony. The waiting period is two years except for class B felonies, which is five years. Further, if you only have juvenile diversions on your record, you may be able to have the files destroyed if you are now over 18. To learn more about sealing a juvenile criminal record, speak with an experienced criminal defense attorney or look at RCW 13.50.050.
Expungement — or complete deletion — is only available for non-conviction data. You must never have been convicted of the crime to qualify for expungement of records under RCW 10.97.060. Examples of the types of records that will qualify for expungement include acquittals, dismissals, and dismissals after stipulations of continuance (a.k.a. “agreed orders of continuance”). The waiting period for expungement is two years after the dismissal or three years after arrest if the case was not charged and is not actively being prosecuted. Only law enforcement — not court — records may be expunged. Your criminal defense attorney can assist you with the appropriate process.
People convicted of felonies or domestic violence-related misdemeanors lose their right to bear firearms under both state and federal law. Restoration of firearm rights under state law is available for nearly all crimes except sex offenses and class A felonies. The waiting period is five years for felonies and three years for misdemeanors. Additionally, you must have completed all the conditions of your sentence, including payment of all fines, fees, and restitution. In the case of a felony, this means that a “Certificate of Discharge” must be issued, demonstrating that your sentence is complete.
You must file a petition in Superior Court requesting a restoration of firearm rights. The local county prosecutor has the right to oppose the petition, but usually does not if all the statutory requirements have been satisfied. Your criminal defense attorney can prepare a petition and discuss it with the prosecutor’s office to make sure that the statutory requirements are met. You can learn about these statutory requirements by reviewing RCW 9.41.040(4).
In the case of a felony, federal firearm rights are restored when the Certificate of Discharge is issued. Paradoxically, due to a glitch in the wording of the federal statute, no restoration of federal firearm rights is possible where the predicate conviction is a misdemeanor domestic violence offense. Although this type of firearm offense is not typically charged in federal court, it is nonetheless contrary to federal law to possess a firearm after a misdemeanor DV conviction. To learn more about the federal statutes in this area, contact your criminal defense attorney or look at 18 U.S.C. 921-922.
If you were convicted of a misdemeanor or juvenile offense, your voting rights are not affected. If you have been convicted of a felony, however, your voting rights are forfeited until a Certificate of Discharge is filed. As explained above, a Certificate of Discharge is a document issued by the court that establishes that your sentence has been 100% completed, including payment of all fines, fees, and restitution, and completion of all treatment or counseling requirements. The court is supposed to issue it automatically at the time the sentence is complete, but often doesn’t. You and/or your criminal defense attorney can file a request to the Superior Court Clerk’s Office requesting the issuance of the Certificate. One important issue, however, is the effective date of the Certificate — if it should have been issued years earlier but wasn’t, it can adversely affect the running of the waiting periods and your eligibility for vacating a record or restoring firearm rights. This is a tricky issue that should be discussed at length with your experienced criminal defense attorney.