What are the requirements for vacating a misdemeanor conviction?
You must meet these four requirements to vacate a misdemeanor conviction in Washington
- You have completed all the terms of your sentence, including paying all court costs
- There are no pending criminal charges against you in any state, federal, or tribal court
- Three years have passed since you completed your sentence
- There are no pending restraining orders against you. These include domestic violence protection orders, anti-harassment orders, or any other type of civil restraining orders
RCW 9.96.070 sets forth the requirements for vacating a misdemeanor conviction in Washington.
Is the procedure different for vacating a felony?
Yes. Ironically, in some ways it is easier to vacate a felony conviction than a misdemeanor conviction.
Is vacating a misdemeanor different than vacating a gross misdemeanor?
A simple misdemeanor carries a maximum of 90 days in the county jail and a $1,000 fine. A gross misdemeanor carries a maximum of 364 days in jail and a $5,000 fine.
For purposes of vacating your conviction, however, gross misdemeanors and misdemeanors are treated the same.
Can I vacate a DUI conviction?
No. In Washington, you cannot vacate any crime for driving under the influence of alcohol or drugs (DUI). You also cannot vacate the crime of “physical control” of a motor vehicle under the influence, a similar type of crime. Unlike DUI, you can be convicted of physical control even if you weren't driving the vehicle.
I was charged with DUI but I pleaded guilty to a reduced charge? Can I vacate my conviction?
Sometimes the prosecutor will reduce your DUI to a lesser crime such as reckless driving or negligent driving in the first degree. This typically happens if you have a good record and don't have any prior DUI or other alcohol-related crimes.
If you are convicted of a non-DUI charge—even if you were originally charged with DUI—you can vacate your conviction, but only under the following circumstances:
- Ten (10) years have passed since you were arrested for DUI
- You have not had a new “alcohol or drug violation” within the past 10 years
Keep in mind that, under the statute, an “alcohol or drug violation” does not necessarily mean a new DUI. This could be a drug offense (i.e. possession of drug paraphernalia) or even a non-criminal alcohol infraction such as having an open container of alcohol in a vehicle while driving on a highway.
Can I vacate my domestic violence conviction?
Yes, but in addition to the four requirements described above you have to satisfy the following three conditions:
- Five years have passed since you completed your sentence. This includes court costs and court-ordered treatment
- You have not had two or more domestic violence convictions that resulted from different incidents
- You have notified the prosecutor in writing that you are trying to vacate your conviction
What is a domestic violence offense?
A domestic violence (DV) offense means you committed the crime against a so-called “intimate partner” or a “family or household member” as defined in RCW 26.50.010.
An “intimate partner” means any of the following people:
- Spouse or former spouse
- Domestic partner or former domestic partner
- You and the victim have a child in common—even if you were never married or never lived together
- Current boyfriend or girlfriend that lives with you
- An ex-partner or ex-spouse with whom you lived in the past
A “family or household” member means any of the following people:
- Anyone related to you by blood or marriage
- Any adult person who lived with you in the past (i.e. roommate)
- Anyone with whom you have a legal parent-child relationship. This could be a stepparent, stepchild, grandparent, or grandchild
You are guilty of a misdemeanor DV offense if you commit any of the following crimes against an “intimate partner” or “family or household member” in Washington:
- Assault in the fourth degree
- Reckless endangerment
- Criminal trespass in the first degree
- Criminal trespass in the second degree
- Malicious mischief in the third degree
I was charged with a DV offense but I pleaded guilty to a non-DV offense. Is that still considered to be a DV conviction?
Probably. Here's why.
Under RCW 9.96.060, the judge can review the “court file” to determine whether the offense charged can be classified as a DV offense. At a minimum, the court file is going to include a “probable cause” statement (basically, a summarized version of the police report).
From this report, the judge may determine that the offense is a DV offense even if you didn't plead guilty to a DV offense.
I had a restraining order against me in the past but now I don't. Can I vacate my conviction?
Yes … unless you violated the restraining order within five years of moving to vacate your conviction.
Example: your ex-girlfriend got a DV protection against you in January 2017 and it lapsed in January 2018. In June 2017, you pleaded guilty to violating this DV protection order. You cannot vacate a theft conviction in January 2020 because you violated a retraining order within the past five years.
What other misdemeanors cannot be vacated?
You cannot vacate the following misdemeanor convictions in Washington:
Obscenity / pornography: you cannot vacate any of the following convictions under RCW 9.68:
- Selling or distributing indecent articles (RCW 9.68.030)
- Selling or exhibiting erotic materials (first or second offense) (RCW 9.68.060)
- Unlawful display of sexually explicit material (RCW 9.68.130)
You also cannot vacate a conviction for attempting to commit one of these three crimes.
Sexual offenses: you cannot vacate any of the following offenses under RCW 9A.44
- Custodial sexual misconduct in the second degree (RCW 9A.44.170)
- Sexual misconduct with a minor in the second degree (RCW 9A.44.096)
You also cannot vacate a conviction for attempting to commit one of these two crimes
Sexual exploitation of children: you cannot vacate any one of the following offenses related to the exploitation of children under RCW 9.68
- Communicating with a minor for immoral purposes (first offense) (RCW 9.68A.090)
- Permitting commercial sexual abuse of a minor (RCW 9.68A.103)
- Minor selling depictions of himself or herself engaged in sexual activity (RCW 9.96A.053)
- Allow minor to be on premises of living erotic performance (RCW 9.68A.150
You also cannot vacate a conviction for attempting to commit one of these two crimes
Can I vacate my conviction for failure to register as a sex offender?
Yes, but only if you were convicted of a misdemeanor.
Under RCW 9A.44.132, you are guilty of a gross misdemeanor if you fail to register for a non-felony sex offense.
You cannot vacate a conviction for felony failure to register as a sex offender or failing to register as a kidnapping offender.
Will the prosecutor object to my motion to vacate?
It depends on several factors. In some courts, prosecutors carefully review these motions and appear at the court hearings. In other jurisdiction, the State defers to the court. This essentially means the prosecutor doesn't agree but (more importantly for you) doesn't object.
You should always reach out to the prosecutor to try to get the State to agree to your motion. The judge may grant your motion anyway (assuming you are eligible, of course), but judges are more likely to grant your motion if the prosecutor agrees.
Will I have to go to court or can I just file a motion?
That depends on the jurisdiction. In some courts, you will have to appear. In others, the judge may simply review your written motion and issue a decision by mail or email.
If you have an attorney, you will very rarely have to appear. Typically, in most courts, your attorney will appear in court and present your motion to the judge.
If I qualify, will the judge grant my motion?
Under RCW 9.96.060, the judge has the “discretion” to vacate your conviction, even if you meet all the requirements for vacation. That is, the judge may say no. A judge, for example, may deny your motion based on the facts of the particular case, your record, or based on the prosecutor's objection.
Can I vacate more than one misdemeanor?
Yes. This is a recent development.
Before July 2019, you could only vacate one misdemeanor conviction during your lifetime. But under the New Hope Act—which Governor Inslee signed into law on July 28, 2019--you can vacate as many misdemeanors as you are eligible, subject of course to court approval.