The State of Washington provides three remedies for individuals with criminal history records. Depending on the circumstances, one may vacate, seal or expunge such records. The purpose of this legal guide is to provide an overview of these options.
Vacating a Criminal Conviction
This remedy refers to the process whereby the court dismisses the information, indictment, complaint, or citation, and vacates the judgment and sentence against you. The guilty finding is reversed, the criminal charge is dismissed and you are released from all penalties and disabilities resulting from the offense. Your conviction is removed from your criminal history for purposes of determining a sentence in any subsequent conviction. You may then state, for "all purposes" that you have never been convicted of the crime. The vacate order is sent to the WSP and FBI. Record of the conviction may not be disclosed to any person except other criminal justice enforcement agencies. For most misdemeanors, there is a 3-year waiting period but for domestic violence crimes, it is a 5-year waiting period. You cannot vacate a DUI conviction. And for felonies, you have to wait 5 years for a Class C felony and 10 years for a Class B felony. Once you successfully vacated your conviction, you can wait two years after that point and have your arrest record expunged as explained below. However, vacating a record does not remove information from the court's electronic record keeping system. That record will remain, and it will be available to the public. The record will be updated to contain additional information about the vacation of the record. Therefore, you should then consider filing a motion to seal the court records.
Sealing a Court Record
Whenever you appear in court, an electronic docket is created which logs every activity that is taken in your case. A typical court docket will have entries showing the filing of the charges and each time you or your attorney appeared in court for a hearing, case disposition, charges being dismissed, penalties imposed, etc. Any background search of your criminal record will include both the Washington State Patrol and the court docket. Expunging records only applies to records kept by the State Patrol. That is why sealing is also necessary. Obtaining an order to Seal means that your court records--both the computer and the physical file--are closed to public viewing. However, sealing is discretionary, meaning that the court has to make a judgment as to whether or not to grant your motion. In assessing your motion, the court will weigh five factors: 1) there has to be a serious and imminent threat to an important interest; 2) anyone present in the court must be given the chance to object; 3) sealing must be the only viable way to protect the interest named; 4) the public's interest in the file remaining open is outweighed by the defendant's need for sealing; and 5) the period of time for which the sealing will be in effect must be specified.
Expunging an Arrest Record
This remedy refers to deletion of "non-conviction data" in criminal justice agency files (the police or other law-enforcement agency) which consists of the arresting officer's report of the incident, any evidence related to the investigation such as photographs and audio or video recording, as well as booking photos and fingerprints. Anyone searching your record via public disclosure request can access this data. The remedy of Expungement is available in the following circumstances: 1) you were arrested for a crime but the prosecutor elected not to file a criminal charge, complaint or information; 2) you were arrested, a criminal charge was filed but the charge was dismissed prior to trial; 3) your case went to trial but you were found not guilty of the charge. To qualify to for Expungement you must meet the following eligibility requirements: 1) you never plead guilty to the crime you were arrested for; 2) you don't currently have charges pending against you in state or federal court; 3) two years have passed since either your case was dismissed or you were acquitted of the crime, or three or more years have passed since the day you were arrested or the case was filed; and 4) you are not a fugitive and a case against you is not still pending in court.
Additional resources provided by the author
Gathering necessary court documents, drafting the correct pleadings and navigating the court system can be a challenge to anyone lacking prior experience with the court system so it is probably a good idea to seek out the services of a legal professional with experience in this area of the law.