Expungement of Criminal Records – General – Washington
1. What is an expungement?
The sealing or destruction of records. Thereafter, the person may legally deny the existence of the records. There are some limitations – evidence of the conviction can be raised during a later criminal prosecution. Also, obtaining an order to vacate/seal most likely does not restore your right to own or possess firearms.
2. Do the records just disappear?
No. The vacating, sealing,or destroying of a court record does not necessarily change or delete the records maintained by law enforcement agencies, the Department of Licensing or other government agencies. Requests to change or delete records maintained by other agencies should be made to that agency.Computerized court indexes such as SCOMIS may still show the nature of the charge. Employers may check both SCOMIS and the FBI records and obtain this information. However, it is still worthwhile to obtain a court order vacating and sealing your record, since it does provide you some protection in background checks.
3. Who Can Get a Juvenile Record Expungement?
The court may grant your request in cases where the sentence was announced after July 1, 1995, if: your offense was not a sex offense or a Class A felony since you were last released from confinement, you have spent a specified time period since being released or had a final disposition without being convicted of any further offense (see below). If you are 18 years old and your only criminal history is a single referral for juvenile diversion, you may request that the court destroy its record in the matter if two years have passed since your diversion was completed. If your only criminal history consists of more than one referral for diversion, you may request that the court destroy its records in the matters if you are at least 23 years old.
JUVENILE COURT RECORDS
If you were found guilty of an offense in juvenile court, you may ask the court to seal the records of conviction by filing a motion with the court. You must provide a copy of the motion (request) to seal the record to the prosecuting attorney. Notice to the Washington State Patrol is also advisable. You may also be required to notify the victim. Forms requesting that the court seal your juvenile record are available from the court or by calling the Administrative Office of the Courts at (360) 705-5328. The court may grant your request in cases where the sentence was announced after July 1, 1995, if:
• your offense was not a sex offense or a Class A felony;
• since you were last released from confinement, you have spent a specified number of years in the community (five years for a Class B felony, two years for a Class C felony, two years for a gross misdemeanor or a misdemeanor or a diversion agreement) without committing any offense or crime that resulted in a conviction,
• no proceedings are pending against you seeking the conviction of a juvenile offense or a criminal offense,
• no proceeding is pending against you seeking the formation of a diversion agreement,
• you have paid all restitution.
Once your record is sealed, your case is treated as if it never occurred and you may state that you were not convicted of that offense. The records will be unsealed, however, if you are found guilty of a juvenile offense or a crime after the court granted your request to seal the record or if you are charged with a felony after the court has granted your request to seal the record.
If you enter into a deferred disposition of a juvenile case, and you fully complete all of the conditions of supervision and pay full restitution, your conviction will be vacated by the court and the case dismissed (unless it is a conviction of animal cruelty in the first degree.) The case records will also be sealed by the court within 30 days of your 18th birthday if you turn 18 on or after July 26, 2009. If you turned 18 before July 26, 2009 and have had a deferred disposition vacated by the court, and do not have any charges pending, you may ask the court to seal the case.
If you are 18 years old and your only criminal history is a single juvenile diversion agreement or counsel and release entered into before June 12, 2008, you may request that the court destroy its record in the matter if two years have passed since your diversion or counsel and release was completed. If your single juvenile diversion agreement or counsel and release was entered into on or after June 12, 2008, the court will automatically destroy its records if two years have passed since the diversion or counsel and release was completed and you have no criminal matter pending and you do not owe any restitution. If your only criminal history consists of more than one referral for diversion, you may request that the court destroy its records in the matters if you are at least 23 years old and you have no pending criminal matters.
4. When is Expungement Allowed?
Class B- after 10 years
Class C- after 5 years, other than a class C felony described in
RCW 46.61.502(6) or 46.61.504(6), in which case it is after 10 years
Misdemeanor-after 2 years and person is now 18 years old
Gross misdemeanor-after 3 years and person is now 18 years old
Diversion- after 2 years and person is now 18 years old
5. Who Can Get an Adult Record Expungement?
Sealing may be ordered by the court when a conviction is vacated or for compelling reasons in the interests of justice.
Vacating Felonies.
RCW’s 9.92.066, 9.95.240 and 9.94A.640 allow for the vacating of some felony convictions. You may request, by motion, that the court vacate the conviction. Such a motion may only be granted if:
• you have completed your sentence and you have been discharged,
• there are no criminal charges pending against you in any court of this state, or another state, or in any federal court,
• your conviction was for a nonviolent offense, and was not an offense defined as a “crime against a person”,
•since you were issued a discharge, you have spent a specified number of years in the community (10 years for a Class B felony and certain Class C driving offenses, 5 years for most Class C felonies) without committing any offense or crime that resulted in a criminal conviction.
Vacating Misdemeanors.
RCW Chapter 9.96 authorizes the court to vacate misdemeanor and gross misdemeanor convictions. You may request by motion that the court vacate your conviction if at least three years have elapsed since the completion of your sentence, including any period of probation (five for domestic violence convictions) and:
• You have no pending criminal charges or new convictions.
• Your offense was not violent as defined by RCW 9.94A.030, or an attempt at such an offense.
• The offense did not involve driving while intoxicated or a related offense.
• The offense was not a sex offense.
• You have satisfied all conditions of your sentence.
• You have not had another conviction vacated.
• You have not been the subject of a protection, nocontact or restraining order within the last five years.
RCW’s 9.92.066, 9.95.240 and 9.94A.640 allow for the vacating of some felony convictions. You may request, by motion, that the court vacate the conviction. Such a motion may only be granted if:
• you have completed your sentence and you have been discharged,
• there are no criminal charges pending against you in any court of this state, or another state, or in any federal court,
• your conviction was for a nonviolent offense, and was not an offense defined as a “crime against a person”,
• since you were issued a discharge, you have spent a specified number of years in the community (10 years for a Class B felony and certain Class C driving offenses, 5 years for most Class C felonies) without committing any offense or crime that resulted in a criminal conviction.
Whether a court record of conviction may be vacated, sealed, or destroyed depends upon the type of conviction (felony or misdemeanor), and the court where the conviction was obtained (juvenile or adult).
What records may be expunged?
VACATION OF A CONVICTION
The court may clear the record of conviction and the fact that the offender has been convicted of the offense shall not be included in the offender’s criminal history record.
JUVENILE RECORDS
A court order to seal a juvenile record may also include the removal of all reference to the arrest incident and disposition from the records maintained by the Washington State Patrol (WSP), but identifying information held by the WSP is not subject to sealing or destruction. Identifying information includes fingerprints, palmprints, soleprints, toeprints, and any other data that identifies you by physical characteristics, name, birthdate or address. The documents related to the arrest and disposition named in the court order are sealed in an envelope. The envelope is not opened unless the WSP is ordered to do so by a court or if you are later arrested for a felony or are found guilty of a crime or juvenile offense.
CRIMINAL HISTORY INFORMATION
You may request deletion or expungement of Criminal History Record Information (CHRI) in the Washington State Patrol (WSP) if:
(1) the file consists only of non- conviction data;
(2) you are not under prosecution and you have not been arrested for or charged with a new crime; and either
(3a) two years or longer has elapsed since the record became non-conviction data as a result of the entry of a disposition favorable to you,or
(3b) three years or longer have elapsed from the date of arrest or filing of charges and you are not a fugitive and the case is not still pending in court.
Information regarding how to make a request for deletion or expungement of criminal record information may be obtained from the WSP. Following the WSP’s procedure will not delete or expunge CHRI in the possession of a local police agency. A separate request must be made to the local (arresting) police agency in accordance with that agency’s procedure. You may not obtain the deletion or expungement of a record related to a case that resulted in a conviction or other disposition adverse to you.
Examples of dispositions that are adverse to you include the entry of an order to dismiss entered after the successful completion of a period of probation, suspension, or deferral of sentence. However, if the superior court has vacated your felony conviction, you may request that your record be deleted.
7. How do I get records expunged?
JUVENILE COURT RECORDS
If you were found guilty of an offense in juvenile court, you may ask the court to seal the records of conviction by filing a motion with the court. You must provide a copy of the motion (request) to seal the record to the prosecuting attorney. Notice to the Washington State Patrol is also advisable. You may also be required to notify the victim. Forms requesting that the court seal your juvenile record are available from the court or by calling the Administrative Office of the Courts at (360) 705-5328.
STEP 1: OBTAIN A PERSONAL CRIMINAL HISTORY CHECK
In many cases, your local prosecutor and your employer will be satisfied that you have no new arrests on your record if you obtain an “unofficial” copy of your criminal history background report through the WSP on the Internet at the following website: https://watch.wsp.wa.gov. This service requires a fee to be paid..
If the WATCH printout does not satisfy the prosecutor or employer, then you should go to your local law enforcement office (police or sheriff) and have them fingerprint you and provide you with TWO official fingerprint cards.
Next, write the Washington State Patrol (“WSP”) to request that they send you an official copy of your personal criminal history background (sometimes referred to as a “fingerprint search”). Explain that you are making this request in connection with your motion to vacate/seal criminal history records. Include one of the official fingerprint cards (NOT a copy) and the appropriate fee and send everything to:
Criminal History Section
Washington State Patrol
PO Box 42633
Olympia WA 98504-2633
It can take up to 8 weeks or more for the WSP to process your request. If you have not received the report within 8 weeks of your mailing, you should call the WSP at 360.705.5100 to inquire as to the status of your request.
STEP 2: OBTAIN COURT DOCUMENTS
Go to the court in which you were convicted and obtain the following documents from the Court Clerk:
1. A copy of the Satisfaction of Judgment if there is one.
2. A certified copy of your Certificate and Order of Discharge.
This document should have been provided to the court by the Department of Corrections (DOC), and then given to you in person or by mail(and filed in the criminal court file), after successful completion of the sentence.Sometimes, DOC terminates supervision of a convicted individual without issuing an Order of Discharge. For example, the individual may have failed to pay fines that were required or failed to complete a treatment program that was ordered. Because your ability to vacate a conviction is based on the date the Order of Discharge was issued, you will NOT be able to vacate your conviction until an Order of Discharge has been issued. You may be able to get this issue straightened out with DOC if you in fact paid all your legal financial obligations or completed all sentencing conditions, or you may need to contact a private attorney. If you are low income and live outside King County, you may call Northwest Justice Project’s CLEAR line at 1-888-201-1014 (King County low-income clients may call 206-464-1519) for advice or a possible referral.
3.Certified copy of your Judgment and Sentence.
The files with these documents will likely be in the court’s archives and thus your request may take several weeks to process. There may be charges for copying these documents.
STEP 3: DRAFT YOUR DECLARATION TO SUPPORT YOUR MOTION
NOTE: It is preferred that any documents you prepare for the court are TYPED and NOT handwritten. If typing is not possible, then be sure that the penmanship is clear and easy to read.
In your Declaration, you are stating the information necessary to meet the “Basic Requirements” noted above.
You should also attach all court/other documents related to your declaration.
STEP 4: DRAFT THE MOTION
Complete the “Defendant’s Motion for Order . . .” form.
STEP 5: CONTACT THE PROSECUTOR’S OFFICE/VICTIM’S INFORMATION
At some point early on, well before scheduling your court hearing, you should contact the prosecutor’s office that was involved in your case. Explain what you are doing and ask to speak with the prosecutor in their office who handles such matters.
You may learn that the particular prosecutor’s office does not require the formality of a court hearing and will agree to sign off on an “Agreed Order” if you provide them with sufficient proof you have satisfied the statutory requirements. (See the section below regarding the “Order to Vacate/Seal . . .” in Step 9 for more information.)
It is more likely, however, that the prosecutor will require that you schedule and attend a hearing before the judge. If so, you must properly notify the prosecutor of the hearing by following applicable court rules (see below).
STEP 6: SCHEDULE HEARING DATE/NOTICE OF HEARING
When you have all your papers in order and are essentially ready to go to court, contact the Court Clerk and find out which court/judge will hear your motion and on what day of the week/time it can be heard. You should plan to schedule your hearing 3-4 weeks in advance, and verify with the Clerk that there are no conflicts around this time.
Also, verify with the Clerk whether there is a special form that you must use to note the time/date of the hearing. If not, you may use a “Notice of Hearing re Motion for Order . . .” form.
Finally, verify with the court whether there is a filing fee for this type of motion. At least some courts do not require a filing fee as you are filing the motion under the original case number. If the clerk believes a filing fee applies, ask that they verify this with their supervisor and/or the court’s accounting department. If a fee does apply, it may be around $110-$125 cash, money order or certified check.
STEP 7: COPY/FILE/SERVE THE DOCUMENTS
Make copies of all your documents so that you have THREE complete sets – one original and two copies. You may also need at least TWO additional copies of your “Notice of Hearing”.
Go to the Clerk’s office and file the originals – the “Motion” (with attachments), the “Declaration” (with attachments), and the “Notice of Hearing” – and pay any applicable filing fee. Also, have them date stamp one set of your documents (the first page of each document in the set).
Then, go directly to the prosecutor’s office and hand a copy of your documents – the “Motion”, “Declaration”, and “Notice of Hearing” to a live person in the prosecutor’s office. Have this person date stamp the set of documents that was previously stamped by the Court Clerk. Also, make sure that the person who receives the documents understands that there is a notice regarding a hearing that will happen very soon and the documents should immediately be given to a prosecutor.
If there were any identifiable victims of your crime, write the prosecuting attorney a letter requesting that they send notice of the hearing to each victim and include a copy of the “Notice of Hearing” and an envelope with sufficient postage for this purpose.
STEP 8: DECLARATION OF SERVICE
Complete a “Declaration of Service” form with information on HOW you sent WHAT papers to WHOM and WHEN.
Make FOUR copies, file the original with the Court Clerk some time before your hearing, have one of your copies date stamped by the clerk and bring the three copies with you to the hearing – one for yourself (the date stamped copy), one for the prosecutor and one for the judge.
STEP 9: PREPARE FOR & ATTEND THE HEARING/OBTAIN AN ORDER
Fill in an “Order to Vacate Seal . . .” – everything except where the judge and prosecutor signs/dates it. If the prosecutor decides to sign off on your order, check the box under the heading next to “AGREED ORDER” and have the prosecutor sign it at the end. Make THREE copies and bring them to the hearing.
Prepare for the hearing by writing a brief outline of what you intend to say to the court. Your outline should follow the following format:
1.Brief introduction. Introduce yourself, thank the court for allowing you to be heard, and explain why you are there – i.e., bringing a motion to vacate criminal history records.
2.Briefly state that you have satisfied all of RCW 9.94A statutory requirements.
3.Briefly state that you have satisfied all of the procedural requirements under General Rule (GR) 15 by serving proper notice of the hearing.
4.Present a copy of your proposed order to the prosecution and to the judge. Explain that your proposed order tracks the language in RCW 9.94A.640 and General Rule 15.
5.Ask the court if it has any questions and, if so, answer them to the best of your ability.
Attend the hearing. Bring at least TWO extra copies of your documents (THREE copies of your “Declaration of Service” and “Order to Vacate/Seal. . .”), which includes the copy that was date stamped by the court and the prosecutor.
1.Be 30 minutes early.
2.Dress neatly, as if you were going to a job interview.
3.Do NOT bring your children, if at all possible.
4.Check in with the clerk of the judge’s courtroom.
5.Try to find the prosecutor and go over any last minute details with him or her before the hearing.
6.When your case is called, walk up to the table or podium for lawyers in front of the judge and wait to be instructed by the judge to speak. Follow your prepared outline.
7.Remember to speak only to the judge and only when it is your turn. Do NOT interrupt the judge or speak to the prosecutor, even if they interrupt or speak to you. You want to appear polite and reasonable. Staying calm will impress the judge. If you are confused or do not understand something, politely tell the judge so and ask for clarification.
If the judge grants and signs your order, ask that either the judge or courtroom clerk give the order to you so that you may go to the Court Clerk’s office to file it and obtain FIVE copies of the order: be sure that the order has the court’s file stamp on it or the Washington State Patrol will not accept it. There will be a charge for this service.
STEP 10: SEND THE ORDER TO THE WASHINGTON STATE PATROL (WSP) & OTHER AGENCIES
