Written by attorney James J White

Getting that Pesky Dismissed or Vacated Charge off Your Record

That old charge that was dismissed or vacated still showing up on your record. Here is the argument to make:

Pursuant to State v. Breazeale, 144 Wn.2d 829, 31 P.3d 1155 (2001) and State v. Riley, 143 Wash.App. 41, 177 P.3d 115 (2008), the court has authority to order that the Washington State Patrol seal the record of this conviction from public view. In Breazeale, the Washington Supreme Court found that pursuant to statute the court had authority to seal record from public view. This was confirmed by the Rileycourt. Because the case was a conviction that resulted in a guilty finding, RCW 10.97 does not allow expungement of the record. See Riley, 143 Wash.App. at 44-45. To give the person receiving the benefit of dismissal, theBreazeale court has allowed courts to order that the Washington State Patrol seal the record of the conviction from public view. Id. at 44.

Additionally, by power of the vacation of his sentence, client received the benefit of having his firearms rights restored. InState v. Swanson, 116 Wash.App. 67, 65 P.3d 343 (2003), the court ruled that if a person could show three things, their petition to have their rights restored must be automatically granted. Those requirements are: 1) five or more years in the community without being convicted or currently charged with a felony, misdemeanor, or gross misdemeanor, 2) no prior convictions prohibiting firearm possession, and 3) that the individual complete all sentence conditions. 76. If an individual can do that, the court is without discretion to deny the reinstatement and the reinstatement is a ministerial duty only. 78.

These are the same three things required to have a felony class C sentence vacated. See RCW 9.94A.640(2). Further, subsection 3 of RCW 9.94.640(2) states: “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." RCW 9.94A.640 (emphasis added) (formerly RCW 9.94A.230).

That should do it for you. Contact me directly if you'd like further assistance.

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