Vacating Misdemeanor and Felony Convictions
One thing I know as a Seattle criminal defense attorney is that people from all walks of life can and have been convicted of crimes. A conviction may have involved a plea agreement, or just be the end result of a mistake in one’s past. But for whatever reason, convictions happen. And no matter how old a conviction is, background checks bring those convictions front and center.
And as I’ve written about before background check results can wreak havoc for job prospects, housing prospects (more on that below), and even travel across the border. In short, a criminal conviction doesn’t do anyone any favors. But what can you do about it? Well for some people the law allows the conviction to go away forever! Read on…
First note that every state treats criminal convictions differently. So while this information is applicable in Washington, people with convictions from other states ought to talk to local attorneys. Secondly, the rules for vacating convictions differ whether the conviction is a misdemeanor/gross misdemeanor or a felony, and I’ll talk about those specifics below. There are also post-conviction issues involving restoring civil rights and juvenile convictions, but those will have to be in another post. With that being said:
What does it mean to “vacate” a conviction?
Vacating a conviction means treating the conviction as if it never occurred. For a court case, when a conviction is vacated, it has the effect of withdrawing either a guilty plea or guilty finding, and putting a “not guilty” plea in its place. And then the criminal charge is dismissed completely. The end result is that the law treats the case as if the defendant always pleaded not guilty, and the charge was thrown out. As far as the records are concerned, no finding of guilt is associated with the charge.
It’s important to note that because under the law the conviction is treated like it never occurred in the first place, a person can claim on applications they were never convicted of a crime! That is huge for people. While most applications that ask this question have a space for an “explanation,” in reality any disclosed conviction is often an automatic bar to a job or housing opportunity. Being able to check “no” to the question “Have you ever been convicted of a crime?” is a very good thing.
What about records?
Records of criminal convictions are a complicated topic.
Law enforcement keeps conviction records; in this state the Washington State Patrol (WSP) is the official repository of criminal records, and thus the official source for background checks. WSP won’t automatically update their records when a conviction is vacated. However when I ask a court to vacate a conviction, I also request a copy of the order be sent to WSP with the directive to update their records, and WSP will do so usually quite quickly after receiving the documents.
The FBI also keeps criminal records under their National Crime Information Center. You can request an FBI background check. When a conviction is vacated I also request a copy of the order be sent to the FBI. Unlike state agencies, federal agencies are not bound to follow a state court’s order. But in my experience the FBI generally will update their records in accord with a vacated conviction.
But there’s another source of criminal information: court records themselves. These are the records that are created when a criminal case is actually created. The formal charging documents, motions the lawyers file, the court’s rulings, etc. Can vacating a conviction also get this file sealed or destroyed?
Unfortunately, no. In Washington, our constitution states that justice shall be “administered openly.” And our supreme court has held that part and parcel with this mandate is the preservation of all court records.
The issue was last litigated in 2014. In that case a couple was wrongfully sued for unlawful detainer, which means a lawsuit was started against them to evict them from a residence. This lawsuit was completely baseless and was dismissed. However because of the lawsuit, future potential landlords denied renting to them. Even though they had won their case, when the landlords saw they were a defendant in an eviction case, they closed their doors to the couple (Yes this is legal). Citing their housing hardship, the couple sought to get the court record of the baseless eviction case altered, specifically to have their names replaced with their initials, in order to be able to reenter the rental market.
The Washington State Supreme Court denied the request. Citing the open courts provision, the Court held that any ruling affecting court records, from alteration to destruction, violated the state constitution. Calling the results for the couple “unfortunate,” the Court still held the constitutional requirements of open courts to the public outweighed the interests to the couple.
While that case dealt with eviction records instead of criminal records, the rules apply equally to both. And in fact, most rental applications ask if someone has been a defendant in an eviction lawsuit or convicted of a crime, and background checks look at criminal convictions, and sometimes both.
So even if a conviction has been vacated, people can still visit the courthouse to obtain records of a conviction or go to the court’s website, even if that conviction has been vacated. Will a potential landlord or employer trawl court records? Maybe, but only if they know a record exists to be found. In my experience, once a conviction is vacated and background check companies are updated to reflect the dismissed charge, for the vast majority of employers or landlords looking at background checks, that will be the end of it. But if you’re running for president, on a reality TV show, or something similar, the physical records do exist in perpetuity.
With all that out of the way, the question remains: how does one vacate a conviction? Again it depends on the record one wants vacated.
For both misdemeanors and felonies, the court has the ultimate discretion on whether to grant the request. However there are some statutory requirements to even make the petition. They are:
- All the terms of the sentence have been completed, including financial obligations, i.e. the case is closed;
- At least three years have passed since the case has been closed;
- There are no new criminal convictions in any court, and there are no active charges pending in any court;
- The person seeking to vacate the conviction has not been the subject of a no-contact order/anti-harassment order/civil restraining order.
- The conviction was not a DUI or Physical Control case;
- The conviction was not a reduction from a DUI, but only if there was a subsequent drug/alcohol conviction, e.g. vehicular homicide, another reduced DUI;
- The conviction was not a violent offense or attempt to commit a violent offense;
- If the conviction was labelled as domestic violence, a special designation meaning the conviction involved family members/spouses/roommates, at least five years must have passed;
- The conviction did not involve obscenity/pornography or a sex offense; and
- There has not been another misdemeanor conviction vacated. You only get to vacate one misdemeanor.
There are some differences between vacating felonies and misdemeanors. An important difference for felonies is the Certificate of Discharge. This is a formal document issued by the sentencing court that says a defendant has completed all their conditions of probation, jail time, financial obligations, etc. This has the incidental effect of restoring voting rights and jury-service rights, but also starts the clock for the appropriate waiting period for vacating a felony. With a certificate in hand, the follow statutory requirements apply:
- At least five years have passed since the certificate of discharge was issued for Class C felonies and at least ten years has passed since the certificate was issued for Class B felonies;
- There are no pending charges in any court;
- There has not been a new conviction since the certificate of discharge was issued;
- The offense cannot be “a violent offense” (defined here), or a crime against persons” (defined here), or a felony DUI.
- There is no limit on the number of felonies that can be vacated but the ultimate discretion on whether to grant the request still rests with the sentencing judge.
Ultimately vacating a conviction can give someone a new chance to obtain housing or job prospects. Background checks are ubiquitous and more and more companies are relying on them to turn away otherwise worthy applicants. If you or someone you know needs to get a past mistake vacated, feel free to give me a call.