INSTRUCTIONS FOR VACATING MISDEMEANOR AND GROSS MISDEMEANOR CONVICTIONS

Transcription

1 INSTRUCTIONS FOR VACATING MISDEMEANOR AND GROSS MISDEMEANOR CONVICTIONS Washingtn law permits the vacatin f sme misdemeanr r grss misdemeanr cnvictins. Vacatin f a cnvictin releases yu frm all penalties and disabilities resulting frm the ffense. Fr all purpses, including respnding t questins n emplyment r husing applicatins, a persn whse cnvictin has been vacated may state that he r she has never been cnvicted f that crime. Once a cnvictin is vacated, the fact that yu have been cnvicted f the ffense shall nt be included in yur criminal histry fr purpses f determining a sentence in any subsequent cnvictin. Althugh a vacated cnvictin will nt be used fr subsequent sentences purpses, it may be used fr ther purpses in a later criminal prsecutin with the fllwing exceptin: when a curt vacates a recrd f dmestic vilence as defined in RCW , the state may nt use the vacated cnvictin in a later criminal prsecutin unless the cnvictin was fr: (i) vilating the prvisins f a restraining rder, n-cntact rder, r prtectin rder restraining r enjining the persn, r restraining the persn frm ging n t the grunds f r entering a residence, wrkplace, schl, r day care, r prhibiting the persn frm knwingly cming within, r knwingly remaining within, a specified distance f a lcatin; r (ii) stalking. A vacated cnvictin fr dmestic vilence is nt cnsidered a cnvictin f such an ffense fr the purpses f 27 C.F.R , regarding reinstatement f firearms r explsives rights. Vacatin f a cnvictin des nt autmatically restre yur right t pssess a firearm. The law des nt autmatically vacate yur cnvictin. If yu want t have a cnvictin vacated, yu must file a mtin with the curt. The fllwing infrmatin will assist yu in deciding whether the law applies t yur situatin and, if s, hw t ask the curt t vacate yur cnvictin. If yu meet the fllwing criteria, a curt may, in its discretin, vacate the cnvictin. There are n criminal charges pending against yu in any curt f this state r anther state, r in any federal curt. Yu have nt been cnvicted f a new crime in this state, anther state, r federal curt since the date yu were sentenced n the crime yu wish t have vacated. Yu have never had the recrd f anther cnvictin vacated. Yu are nt currently restrained, and have nt been restrained within five years prir t the vacatin applicatin, by a dmestic vilence prtectin rder, a n-cntact rder, an antiharassment prtectin rder, r a civil restraining rder which restrains ne party frm cntacting the ther party. Excluded Offenses: The cnvictin yu are seeking t have vacated is a misdemeanr ffense and is nt fr ne f the fllwing crimes: Instructin fr Vacating Misd. Grss Misd. Cnvictin - Page 1 f 6

2 A vilatin f chapter 9A.44 RCW (sex ffenses) A vilatin f chapter 9.68 RCW (bscenity and prngraphy) A vilatin f chapter 9.68A RCW (sexual explitatin f children) A vilent ffense as defined in RCW 9.94A.030 r an attempt t cmmit a vilent ffense Driving while under the influence (DUI), RCW Actual physical cntrl while under the influence, RCW Operating a railrad, etc., while intxicated, RCW Prir Offense: If the crime yu are seeking t have vacated is cnsidered a prir ffense as defined belw, then the fllwing additinal criteria must be met: The ffense is nt excluded frm being vacated (see excluded ffenses abve); and Yu have nt been cnvicted f a new crime in this state, anther state, r federal curt since the date yu were sentenced n the crime yu wish t have vacated; and at least three years have passed since yu cmpleted the terms and cnditins f the sentence, including restitutin/legal financial bligatins. RCW (2)(f); and Yu have nt had any subsequent alchl r drug vilatins within 10 years f the date f arrest fr the prir ffense; and Mre than 10 years has elapsed since the date f the arrest fr the prir ffense. A prir ffense means( RCW (14)): Original Cnvictins fr the fllwing (including equivalent lcal rdinances): Driving Under the Influence (DUI) RCW , Actual physical cntrl while under the influence (Physical Cntrl) RCW , Cmmercial Vehicle DUI/Physical Cntrl, RCW , Watercraft DUI, RCW 79A (2), Aircraft DUI, RCW , cmmitted under the influence f intxicating liqur r any drug, Nnhighway vehicle DUI, RCW (2), Snwmbile DUI, RCW (2), Equivalent ut-f-state statute fr any f the abve ffenses. Amended Cnvictins fr the fllwing: If riginally charged with DUI r Physical Cntrl. r an equivalent lcal rdinance, r Vehicular Hmicide, RCW , r Vehicular Assault, RCW ; but cnvicted f: Negligent Driving 1st RCW , Reckless Driving RCW , Reckless Endangerment RCW 9A , Equivalent ut-f-state r lcal rdinance fr the abve ffenses. If riginally charged with Watercraft DUI RCW 79A (2); but cnvicted f: Operating a Watercraft in a reckless manner, RCW 79A (1), r Equivalent lcal rdinance. If riginally charged with Aircraft DUI RCW ; but cnvicted f Operating an Aircraft in a careless r reckless manner, RCW , r Instructin fr Vacating Misd. Grss Misd. Cnvictin - Page 2 f 6

3 Equivalent lcal rdinance. Deferred Sentences fr the fllwing: If riginally charged with DUI r Physical Cntrl r an equivalent lcal rdinance, r Vehicular Hmicide, RCW , r Vehicular Assault, RCW ; but deferred sentence was impsed fr: Negligent Driving 1st RCW , Reckless Driving RCW , Reckless Endangerment RCW 9A , Equivalent ut-f-state r lcal rdinance fr the abve ffenses. Dmestic Vilence: If the crime yu are seeking t have vacated invlved dmestic vilence, yu must: Prvide the prsecuting attrney s ffice that prsecuted yu with timely ntice f yur mtin and declaratin fr rder vacating cnvictin and file the riginal ntice with the curt. Yu must nt have been cnvicted f any ther dmestic vilence ffense arising ut f any ther incident prir t the ffense which yu want t have vacated. (If the current applicatin is fr mre than ne cnvictin that arse ut f a single incident, nne f thse cnvictins cunt as a previus cnvictin.) Five years have elapsed since yu cmpleted the terms f the riginal cnditins f the sentence, including any financial bligatins and successful cmpletin f any treatment rdered as a cnditin f sentencing. Yu have nt been cnvicted f any new crime in this state, anther state, r federal curt since yu were cnvicted in this matter. RCW (2)(g). Prstitutin Cnvictin as a Victim: If the crime yu are seeking t have vacated is a prstitutin ffense that yu cmmitted as a result f being a victim f: trafficking, RCW 9A , prmting prstitutin in the first degree, RCW 9A , prmting cmmercial sexual abuse f a minr, RCW 9.68A.101, r trafficking in persns under the trafficking victims prtectin act f 2000, 22 U.S.C et seq. And if yu meet the fllwing criteria, a curt may, in its discretin, vacate the cnvictin: There are n criminal charges pending against yu fr any crime ther than prstitutin in any curt f this state, r anther state, r in any federal curt. Yu have nt been cnvicted f anther crime, except prstitutin, in this state, anther state, r federal curt since the date f cnvictin. This limitatin des nt apply t cnvictins where the ffender prves by a prepnderance f the evidence that he r she cmmitted the crime as a result f being the victim f trafficking, RCW 9A ; prmting prstitutin in the first degree, RCW 9A , prmting cmmercial sexual abuse f a minr, RCW 9.68A.101, r trafficking in persns under the trafficking victims prtectin act f 2000, 22 U.S.C et seq., accrding t the requirements prvided in RCW Instructin fr Vacating Misd. Grss Misd. Cnvictin - Page 3 f 6

4 fr each respective cnvictin. Yu prve that it is mre likely than nt that the fllwing ccurred in yur case (mre than ne sectin may apply): If yu were cnvicted fr a prstitutin ffense as a result f being a victim f trafficking, RCW 9A , yu must prve: Smene harbred, transprted, prvided, btained, bught, purchased, r received yu. That persn acted knwingly r in reckless disregard fr the fact that frce, fraud, r cercin wuld be used t cause yu t engage in a sexually explicit act r cmmercial sex act. Yur prstitutin cnvictin recrd and ther applicable cnvictins under RCW (3)(b) resulted frm that persn s acts. If yu were cnvicted fr a prstitutin ffense as a result f being a victim f prmting prstitutin in the first degree, RCW 9A , and: If yu were cmpelled by threat r frce, yu must prve: Yu were cmpelled by threat r frce t engage in prstitutin. The persn knwingly used threat r frce t cmpel yu t engage in prstitutin. Yur prstitutin cnvictin recrd and ther applicable cnvictins under RCW (3)(b) resulted frm being cmpelled by threat r frce by that persn. If yu were cmpelled, yu must prve: Yu have a mental incapacity r develpmental disability that renders yu incapable f cnsent. Yu were cmpelled t engage in prstitutin. The persn knwingly cmpelled yu t engage in prstitutin. Yur prstitutin cnvictin recrd and ther applicable cnvictins under RCW (3)(b) resulted frm being cmpelled by by that persn. If yu were cnvicted fr a prstitutin ffense as a result f being a victim f prmting cmmercial sexual abuse f a minr, RCW 9.68A.101, yu must prve: Yu were under the age f 18 at the time f the prstitutin ffense. While yu were under the age f 18, smene: caused r aided smene else t cmmit cmmercial sexual abuse f yu, r asked fr r gt custmers fr cmmercial sexual abuse f yu; r prvided persns r places fr the purpse f cmmercial sexual abuse f yu, r Instructin fr Vacating Misd. Grss Misd. Cnvictin - Page 4 f 6

5 perated r assisted in perating a huse r enterprise fr the purpse f cmmercial sexual abuse f yu, r did anything else designed t result in cmmercial sexual abuse f yu, r caused r aided smene else t cmmit a sexually explicit act with yu, r asked fr r gt custmers fr a sexually explicit act with yu, r prvided persns r places fr the purpse f a sexually explicit act with yu, r did anything else designed t result in a sexually explicit act with yu. That persn acted knwingly. Yur prstitutin cnvictin recrd and ther applicable cnvictins under RCW (3)(b) resulted frm that persn s actins. If yu were cnvicted fr a prstitutin ffense as a result f being a victim f trafficking under the trafficking victims prtectin act f 2000, 22 U.S.C et seq., yu must prve either that: Yu were induced by frce, fraud, r cercin t engage in a cmmercial sex act and yur prstitutin cnvictin recrd is a result, r Yu were induced t engage in a cmmercial sex act while yu were under age 18 and yur prstitutin cnvictin recrd and ther applicable cnvictins under RCW (3)(b) is a result. Offenses nt therwise specified abve. If the cnvictin yu want t vacate was fr an ffense that is nt an Excluded Offense, a Prir Offense, a Cnvictin fr Prstitutin as a Victim f Trafficking, and did nt invlve Dmestic Vilence, yu must meet this criteria: At least three years have passed since yu cmpleted the terms and cnditins f the sentence, including restitutin/legal financial bligatins. RCW (2)(f). Yu have nt been cnvicted f any new crime in this state, anther state, r federal curt since the date yu were sentenced n the crime yu wish t have vacated. RCW (2)(g). If yu can satisfy each f the requirements with respect t the cnvictin yu are asking the curt t vacate, yur next step is t cmplete the frm CrRLJ , Mtin and Declaratin fr Order Vacating Cnvictin. This frm will allw the curt t determine whether yu are eligible t have yur cnvictin vacated. If yu are asking the curt t vacate yur prstitutin cnvictin/s, and yu were a victim f trafficking under state r federal law f prmting prstitutin in the first degree, r f prmting cmmercial sexual abuse f a minr, yu must als cmplete frm CrRLJ , Prstitutin Cnvictin Attachment, and attach it t the mtin. Yu may want t review the curt file r the curt dcket fr the ffense yu are asking the curt t vacate t btain infrmatin yu need t fill ut the frm. Sme cunties may require yu t btain cpies f yur criminal histry recrds and attach them t yur mtin. Read the lcal curt rules r cntact the clerk f the curt where yu will file yur mtin t find ut if this requirement, r any ther lcal requirement, applies t yu. Once yu have cmpleted and signed Instructin fr Vacating Misd. Grss Misd. Cnvictin - Page 5 f 6

6 the mtin and declaratin frm and the attachment, if it applies, make at least tw cpies. The next step is t schedule a hearing fr the mtin fr rder vacating cnvictin. T schedule a hearing, cntact the clerk f the curt where yu were sentenced and ask fr the date and time fr the hearing. Then cmplete the frm that curt uses t schedule a hearing. Make at least tw cpies f the ntice. File the riginal mtin and declaratin fr rder vacating cnvictin, prstitutin cnvictin attachment, if it applies, and ntice dcument. On the same day that yu file thse dcuments with the clerk f the curt, yu must als prvide a cpy f the dcuments t the prsecuting attrney s ffice that prsecuted yu. T ntify the prsecuting attrney's ffice f the hearing, yu may als use frm CrRLJ , Ntice f Mtin fr Order Vacating Cnvictin. If yu use this frm, file the riginal with the clerk f the curt. Yu must als prvide a cpy f the ntice t the prsecuting attrney's ffice at the same time that yu prvide a cpy f the mtin, declaratin, and attachment. Keep a cpy f the ntice, the mtin, the declaratin, and any attachments fr yur infrmatin. The judge will hear yur mtin fr rder vacating cnvictin n the day scheduled fr the hearing. Yu will need t be available t attend the hearing. If the mtin is granted, the judge will cmplete an rder vacating yur cnvictin. The clerk f the curt will send a cpy f the rder t the Washingtn State Patrl and t the lcal law enfrcement agency, if any, which hlds criminal histry infrmatin abut yu. Instructin fr Vacating Misd. Grss Misd. Cnvictin - Page 6 f 6