New Law Makes It Easier to Vacate a Conviction
(including immigration convictions)
The collateral consequences of conviction for a crime are vast, prolonged, and disproportionately crippling to low income communities. In the past 12 months, I’ve seen one person be denied entry into Canada because of a shoplifting conviction in 1978; another be denied the opportunity to be an immigration sponsor for his foreign bride because of a minor domestic violence conviction in 2009. Both of these individuals had dramatically changed their lives since they last appeared in court many years prior. One is now a security guard and the other a longshoreman. But both continue to be punished for minor offenses they committed decades ago, even after having served their time and paid their fines/restitution. That’s because both were convicted in the State of Washington, which until July 28, 2019, prohibited people convicted of misdemeanors from getting their conviction vacated or expunged unless they had not been convicted of any crimes subsequent – even driving with a suspended license. The law allowed only one criminal vacation of a misdemeanor over the course of a person’s life, and that it had to be their most recent conviction. Strangely, the law did not set limits on how many felonies someone could have vacated, only misdemeanors. But now the law has changed following passage of House Bill 1041, sponsored by Representative Drew Hansen, so that more people can apply to have their criminal records vacated and expunged than ever before.
WHAT’S CHANGED: VACATING IMMIGRATION CONVICTIONS
New Convictions Now Eligible to Be Vacated.
Assault in the Second and Third Degree along with Robbery in the Second Degree can now be vacated from a person’s record so long as the crime was not committed against a police officer, or with sexual motivation, or via the use of a firearm/deadly weapon. Failure to Register as a sex offender when convicted under RCW 9A.44.132(2) (gross misdemeanor) Waiting Periods are Shortened Class B felonies still require 10 years and Class C still require 5 to vacate a conviction, but the clock now starts ticking from the date of release from confinement/community custody and not from the date of receiving a certificate of discharge, which still requires total satisfaction of legal financial obligations. In other words, the clock no longer starts at the point that legal financial obligations have been satisfied. No Limit on the Number of Eligible Misdemeanor Convictions that can be Vacated. Applicants must still wait the obligatory 3 to 5 years and pay their legal financial obligations in full. Subsequent convictions do not preclude motions to vacate if it has been at least 3 years since the most recent conviction. Also, there are still limits on of domestic violence convictions for vacation purposes but those limits now include two prior domestic violence convictions instead of one. Being the Respondent to a restraining/protection order is no longer a prohibition to vacating a record. Previously, if there had been a restraining/protection order actively against you in the past 5 years, you could not apply for vacation of a record. Now you can, so long as the order is not active and there were no violations of said order during the previous five years.
What Hasn’t Changed: Firearm Rights and Recidivism
Nothing in the new law effects the restoration of firearm rights. The vacation of a conviction can still qualify as a prior conviction for the purposes of charging a recidivist offense, and it may be also brought into evidence to establish a pattern of abuse etc. For-profit background check companies will still be compiling arrest and court records that landlord’s/employers/private citizens may be able to access despite the vacation of your record. The social stigma may remain, but legal prohibitions will be significantly cleared in terms of being able to get professional licenses, accessing government programs and benefits, etc. The Law Office of Chris Van Vechten is ready and able to assist you in taking yet another step in finally putting this all behind you. Contact us for a free case evaluation.