FAQ

REGARDING VACATING CONVICTIONS

Q. I have heard it said that a person can "expunge" his/her record. What does that mean?

A. Generally, people using the term "expunge" or "expungement" are referring to the process, which in Washington is known as, "vacating." To Vacate a conviction means to remove it from the official record so that the person may thereafter answer "no" to whether they were convicted of the crime, for all purposes including employment, housing, or similar applications

The term "expungement" is used in Washington to refer to a separate legal process to remove non-conviction data from police records. (things like the fact of arrest, or custody) However, the process is seldom used as the information can still be released by clerks' offices who are exempt from its provisions.

Q. I had a conviction many years ago. It was only a misdemeanor. Could it still cause me difficulties?

A. YES. Even a misdemeanor can cause problems, and some misdemeanor convictions such as DUI can truthfully cause you difficulties for a lifetime.

However, whether such a conviction will actually cause problems, depends of course upon the individual and his or her circumstances. A person who has a good job and owns a house may never encounter serious problems. On the other hand, if circumstances change with a loss of job or home, a conviction of any kind may be used to exclude you from rental contracts or from many types of employment opportunities.

Q. I was convicted of DUI several years ago. Can I eventually get it removed from my record?

A. NO. Not at this time A DUI cannot be removed. The statute specifically exempts it from being vacated. The only hope, is if the legislature looks again at this provision and changes it. That will only happen if enough people complain to their state senators and representatives.

Q. I was originally charged with DUI, but the charging document was amended to a lesser charge such as Negligent driving in the first degree, or reckless driving. Can I get the conviction vacated?

A. Yes, but a longer time must pass during which you have no convictions. (see the listing of time requirements below.)

Q. Are there very many types of misdemeanors conviction that CANNOT be vacated?

A. YES. You cannot have a conviction vacated for DUI, sex crimes, or crimes of violence.

Q. Can I have a felony taken off my record.

A. Yes, in many, if not most, instances, it is possible, PROVIDED that you are eligible under other provisions. However, again there are many limitations. Class A felonies are excluded and can never be vacated. The same is true for "crimes of violence" and "crimes against persons."

Q. How long after a conviction must a person wait to get a conviction removed?

A. A person must wait for the following time periods and must not be currently charged with a crime or have been convicted of a new crime since.

For felonies

  • Class "A:" Never.
  • Class "B." 10 years after date of conviction.
  • Class "C:" 5 years after date of conviction.

For Misdemeanors:

  • DUI, violent offenses, sex crimes and such: Never
  • Most "common misdemeanor": 3 years after completing the last sentencing requirement. Cases labeled as or factually involving domestic violence (DV): 5 years after completing the last sentencing requirement.
  • Cases reduced from DUI & involving alcohol: (e.g. Negligent driving first degree, Reckless driving): 7-10 years after completing the last sentencing requirement *

*There is currently a legal debate as to whether 7 or 10 years must go by, due to the statute whereby a person can be charged with a felony based upon a new incident after several prior convictions. Some judges have held that 10 years must go by, but there is a strong legal argument that it only need be 7.

RESTORATION OF FIREARM RIGHTS

Q. I was convicted of a felony, but it was a very minor felony (such as possession of marijuana over 40 gm. Before the change of marijuana laws) Did I still lose my firearm rights?

A. Yes. The current law takes away the right to own, receive, possess, or transfer firearms immediately upon conviction of a felony. It does not matter whether it is considered a "minor" felony or a "major felony". It does not matter whether a firearm was involved or even thought about. A felony conviction of any kind takes away that right.

Q. Can firearm rights be restored regardless of the type of felony for which the person was convicted?

A. No. Class "A" felonies, sex crimes, and others are excluded. Generally speaking, firearm rights may be restored for most class "B" and class "C" felonies.

Q. How soon after a conviction can I get my firearm rights restored?

A. For a felony conviction, at least 5 consecutive years must have passed from the date of the conviction, and during that time you can have no convictions for any new crime. Further, they cannot be restored, if at the time of sentencing, you had a prior conviction for which firearm rights were lost, and that matter was counted as part of the offender score.

For a non-felony, at least 3 consecutive years must have passed with the same requirements as for a felony.

Q. Can a misdemeanor cause me to lose my firearm rights?

A. Yes. However, there are very few. The most common is assault in the fourth degree, involving "domestic violence." (dv)

Q. I had a conviction many years ago, and the sentence was "deferred." (put off). I completed all requirements and it was dismissed. I was told that this was not a conviction since the plea was withdrawn and a dismissal was entered upon a plea of "not guilty." however, when I went to buy a gun they said my rights were lost because of a conviction. What happened?

A. A while back, when reviewing firearm legislation, the state legislature passed the law making a felony conviction automatically strip a person of their gun rights. In doing so, they decided to call that original "deferrred sentence," before the dismissal, a "conviction" for the purposes of gun rights. Many people who had received a "deferred sentence" have been shocked to later discover this. Unfortunatley, even though you have never actually been convicted of a crime, you will likely have to seek an order restoring those rights in order to purchase a gun.

Q. I had a felony conviction many years ago. I was never told that I had lost my gun rights. I have had guns since, but I heard that a felony causes you to lose gun rights. If I have guns, can I be prosecuted for being a "felon in possession of firearms?"

A. Probably not. It is very likely that you did not lose your gun rights. The firearm statute has been amended many, many, times. It began by taking away firearm rights only from people who used guns in the commission of a crime, but with each amendment more were added, until any felony conviction now takes away those rights as does an assault 4th degree with domestic violence.

The present statute makes it a crime to have a weapon after loss of those rights, but only if you were advised orally and in writing at the time of your sentence that you lost your firearm rights. If the judgment and sentence in your case did not say that, then you can not be prosecuted as a "felon in possession."

Q. If I can't be prosecuted for being a felon in possession because I was not advised of having lost my firearm rights, and did not actually lose them at that time, can I buy a gun?

A. Probably not. Even if you did not lose your firearm rights at the time of your conviction, the federal inquiry is likely to end at the felony conviction. They do not look behind what they see on the computer. To them, any felony conviction means loss of rights. If you wish to purchase another gun, you will probably need to get your firearm rights restored, even though you never legally lost them.

Howson Law Office - 415 Pine Street - Mount Vernon, WA, 98273 / Email / Phone 360.336.8722 / Fax 360.336.0987
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