Under Washington Law, certain misdemeanor and gross misdemeanor convictions can be vacated or “expunged”. To have a conviction vacated means that the person convicted is released from all penalties and disabilities that resulted from the conviction. Once the record of conviction is vacated, the fact of the conviction is no longer included in the person’s criminal history. If asked, for example on housing or employment applications, the person may lawfully answer that he was not convicted of that crime. In the criminal traffic arena, certain convictions can be vacated while others can not. Unfortunately, at the present time, convictions for DUI (RCW 46.61.502) and Physical Control (46.61.504) can not be vacated.
What Can Be Vacated From Your Record?
While DUI and physical control charge can not be vacated, reductions from the following charges can be:
- Reckless Driving
- Reckless Endangerment
- Negligent Driving First Degree
- Hit and Run
- Driving on a Suspended License
It is important to note that while convictions for the above offenses can be vacated, this is a discretionary decision made by the court and not a matter of right. Some judges will and do balk at the idea. This is especially true when the conviction is for a charge that was reduced from an original charge of DUI. The thought process of these judges is that a reduction from a DUI counts as a prior DUI in case of a subsequent DUI conviction. An expungement of the initial conviction would nullify it’s use as a prior for future sentencing purposes. This fact alone is a reason anyone who qualifies for an expungement of such a conviction should make a motion to do so. To qualify for a record vacation, in addition to having a qualified charge eligible for expungement one must:
- Have no new criminal charges pending at the time the motion is made
- Have no new convictions for any crime in any court
- Never had a record of another conviction vacated
- Not be currently restrained or restrained within the five years prior to the application of record vacation by an domestic violence protection order, no contact order, anti harassment order or civil restraining order
- Three years must have elapsed since compliance with all conditions of the sentencing court
- If the conviction sought to be vacated would count as a “prior offense” in case of a subsequent DUI conviction, at least ten (10) years must have elapsed since the arrest for that prior offense
Record Vacation vs. Deferred Sentence vs. Deferred Prosecution
Anyone who is currently charged with a DUI who anticipates that the charge might be reduced should also be aware of what is known as a “deferred sentence“. A deferred sentence is a sentencing alternative whereby the court “defers” sentencing for a period of time. If the defendant complies with certain conditions during that period of time, the case is dismissed. This is a much better alternative than a record vacation because it occurs much more rapidly and, if granted, is automatic so long as the individual has complied with all of the court imposed obligations. Also, do not confuse a “deferred sentence” with a “deferred prosecution”. The latter is an agreement to dismiss the case in exchange for completing a long term alcohol, drug and/or mental health treatment program. See if deferred prosecution is right for you.
The distinctions between these different vehicles to keeping or removing a criminal conviction from your record can be confusing. Should you have any questions, please feel free to contact us for more information.