What are the requirements for vacating a felony conviction?
You must meet these three requirements to vacate a felony conviction in Washington
- You committed the offense on or after July 1, 1984
- There are no pending criminal charges against you in any state or federal court
- You have had no other criminal convictions during the required waiting period, depending on the type of felony
- Class B felony: 10 years have passed since you were sentenced or released from custody (whichever is later)
- Class C felony: 5 years have passed since you were sentenced or released from custody (whichever is later)
RCW 9.94A.640 sets forth the requirements for vacating a felony conviction in Washington.
What felonies can be vacated?
Under Washington law, you can vacate certain non-violent Class B or Class C felonies.
Class B felonies are punishable up to 10 years in prison and a $20,000 fine. Class C felonies carry a maximum of 5 years in prison and a $10,000 fine.
What felonies cannot be vacated?
Class A felonies
You cannot vacate any Class A felony. Class A felonies are the most serious crimes in Washington and carry a maximum possible punishment of life in prison.
Here are the most commonly charged Class A felonies:
- Aggravated murder
- Murder in the first degree
- Murder in the second degree
- Manslaughter in the first degree
- Rape in the first degree
- Rape of a child in the first degree
- Rape of a child in the second degree
- Rape in the second degree
- Child molestation in the first degree
- Arson in the first degree
- Burglary in the first degree
- Robbery in the first degree
- Kidnapping in the first degree
- Kidnapping in the second degree with sexual motivation
- Vehicular homicide
- Assault in the first degree
- Assault of a child in the first degree
- Indecent liberties by forcible compulsion
You also cannot vacate a conviction for attempting or conspiracy to commit a Class A felony.
Violent Crimes / Crimes Against Persons
You cannot vacate the following Class B or Class C felonies in Washington, which are classified as violent crimes under RCW 9.94A.030(56) or crimes against persons or children under RCW 43.43.830(7):
- Manslaughter in the second degree
- Arson in the second degree
- Extortion in the first degree
- Kidnapping in the second degree
- Drive-by shooting
- Robbery in the second degree if the conviction included a firearm, deadly weapon or sexual motivation enhancement
- Assault in the second degree if the conviction included a firearm, deadly weapon or sexual motivation enhancement
- Assault in the third degree if the conviction included a firearm, deadly weapon or sexual motivation enhancement or if committed against a law enforcement officer
- Assault of a child (any degree)
- Commercial sexual abuse of a minor
- Indecent exposure
- Custodial misconduct in the first or second degree
- Sexual misconduct with a minor in the first or second degree
You cannot vacate a conviction for felony DUI or felony Physical Control.
In Washington, a DUI or Physical Control offense becomes a felony if you have 3 or more prior DUI-related offenses in the last 10 years.
Federal / Out of State Convictions
You may not be able to vacate a conviction for a federal or out of state offense that be classified as one of the above felonies in Washington.
Can I vacate more than one felony in my lifetime?
Yes. Washington law does not limit the number of felonies that can be vacated, assuming you meet the eligibility requirements. Of course, a judge has the discretion to deny your request, even if you are eligible under the statute.
What is a certificate of discharge?
A certificate of discharge is a Court document officially telling you that you have successfully completed all your conditions of your felony sentence. That is, you have served your prison sentence, finished probation, and paid your fines. In other words, your case is over, and you are “discharged” from the Court's jurisdiction.
The date on your certificate of discharge provides the start date for the required “waiting period”
You must have a certificate of discharge before you can apply to vacate your felony conviction.
Will the court automatically send me a certificate of discharge when I complete my sentence?
Legally, yes. But practically, probably not.
Once you complete your sentence, the Department of Corrections (DOC) is required to notify the Court. The court is then required to issue your certificate of discharge in the mail, but this regularly doesn't happen.
In practice, you will want to file a motion with the court for a copy of your certificate of discharge, and upon verification, the court will send you a copy.
I completed my sentence but I did not receive my certificate of discharge. Does this mean I have to wait longer to vacate my conviction?
No. Your certificate of discharge becomes effective on the date you completed you completed your sentence, not when you actually receive it from the court.
Example: You completed your Robbery 2nd sentence (class B felony) on January 1, 2019, but didn't receive your CD until June 1, 2019. Your effective CD date is January 1, 2019, which means you are eligible to vacate your conviction on January 1, 20129 (10 year waiting period).
I have a no-contact order against me. Can I still vacate my felony conviction?
Under Washington law, a no-contact order is not considered a condition of your sentence, so a no-contact order does not prevent you from getting a certificate of discharge. In other words, an active no-contact order will not impact the state date for the required “waiting period.”
Surprisingly, this makes it easier to vacate a felony than a misdemeanor conviction in Washington. You cannot vacate a misdemeanor if you are subject to any kind of no-contact order.
If my conviction is vacated, does the court still keep a record of the case?
Yes. Vacating a conviction means that you are no longer guilty of the crime, but that doesn't erase the fact that you were once charged and convicted.
To keep the public from seeing your file, you can file a motion to seal to your court record. This is a separate procedure with different rules.