The Difference between Vacating, Sealing, and Deleting NonConviction Data from Your Record
Expunging your record (deleting non-conviction data)
My previous clients often contact me and want to “expunge” their criminal record. The correct terminology in Washington is deleting nonconviction data under RCW 10.97.060. Nonconviction data is limited to information relating to an incident which did not lead to a conviction (i.e. a “not guilty” verdict or charges being dropped) or other disposition adverse to the defendant. Unfortunately, most Courts have determined that a deferred prosecution or diversion is a disposition adverse to the defendant and thus is not eligible to be deleted, but the argument is still there to be made and argued with an appropriate motion.
Nonconviction data can be deleted from criminal justice agency files after two years have elapsed after a “not guilty” verdict or dismissal. Nonconviction data can be deleted after three years from the date of arrest, citation, or warrant was issued which was not prosecuted.
Vacating your record
The majority of my clients are eligible to have their conviction(s) vacated after a certain period of time if they do not have any pending criminal charges and have not been convicted of a new crime since the date of discharge. RCW 9.94A.640 requires at least 5 years to have elapsed for Class C felonies and at least 10 years have elapsed for Class B felonies. Certain crimes, including violent offenses or crimes against persons, are disqualified. Contact me to determine if your offense is eligible to vacate.
Gross misdemeanors and misdemeanors are also eligible for vacating after 3 years have elapsed if all conditions of the Judgment and Sentence have been met, including financial obligations and treatment under RCW 9.96.060. For domestic violence offenses, the statute requires 5 years to have elapsed. Unlike felonies where multiple convictions can be vacated, only one gross misdemeanor can be vacated from your record (and DUI is not eligible).
Vacating your record allows you to withdraw your guilty plea or set aside your guilty verdict. Additionally, it releases you from all penalties and disabilities resulting from the offense and removes it from your criminal history. It allows you to state that you have never been convicted of the offense, including responding to questions on employment or housing applications. Vacating your record does not restore your firearm rights under RCW 9.41.040. A separate petition for restoration of firearm rights would need to be filed.
I recently had a client who was convicted of a Class C felony in 2003. In 2004 my client was convicted of a gross misdemeanor and two class C felonies. Based on the statute, I first filed a motion to vacate my client’s 2004 convictions, including the gross misdemeanor. Once the order to vacate was signed, I was able to file another motion to vacate the 2003 felony as the 2004 felonies and gross misdemeanor were removed from my client’s criminal history. Working through a defendant’s criminal history and the statutes in order to properly vacate the record is vital and requires expertise that I can provide.
Sealing your record
A new law in Washington allows juveniles to have their records sealed automatically when they turn 18, complete probation, or are released from confinement, whichever is later, if they meet certain conditions under RCW 13.50.260. If those conditions are not met, or if the juvenile defendant has already turned 18, the juvenile defendant may still be eligible to seal his/her record if no criminal cases are pending, the offense was not a sex offense, full restitution has been paid, more than 5 years have elapsed for Class A felonies, and more than 2 years have elapsed for all other offenses.
Motions to seal adult criminal records are difficult as the court has to weigh the public’s right to information versus the defendant’s right to privacy. The court weighs a number of factors in making this determination (frequently referred to as the “Ishikawa factors” from the case of Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 (1982). While motions to seal are not frequently granted, I have been successful on these motions before the court. In one case, my client had graduated in the top of the class, scored in the top 10% of the MCAT, and was still having a hard time getting into medical school because of their criminal record. After a contested hearing and argument, the court granted the motion to seal the criminal record and my client went on to medical school.