Law Blog

Vacating Misdemeanor or Gross Misdemeanor Convictions in Washington

Expunction. Expungement. Vacating.  Call it what you will, but Washington law only permits the vacation of some misdemeanor or gross misdemeanor convictions.  I have set forth the following to help clarify your understanding.  If you are seeking to have a conviction vacated, make sure to speak to an attorney to determine if you qualify.

Vacating a conviction releases you from all penalties and disabilities resulting from the offense.  For example, this means that a person responding to questions on employment or housing applications may state that they have not been convicted of that crime.  A vacated conviction cannot be included in your criminal history for sentencing purposes, but can be used by the prosecution at trial for other reasons, subject to certain restrictions.

The law does not automatically vacate your conviction.  If you want to have a conviction vacated, you must file a motion with the court. If the following criteria apply, the court has discretion (meaning it can say no) to vacate:

  1. There are no criminal charges pending against you in any state or federal court.
  2. You have not been convicted of a new crime in any state or federal court since the date you were sentenced on the crime you wish to have vacated.
  3. You have never previously vacated a conviction.
  4. You are not currently restrained, and have not been restrained within five years prior to the vacation application, by a domestic violence protection order, a no-contact order, an anti-harassment protection order, or a civil restraining order which restrains one party from contacting the other party.

Excluded Offenses
The following types of misdemeanors or gross misdemeanors cannot be vacated by law:

  1. A violation of chapter 9A.44 RCW (sex offenses).
  2. A violation of chapter 9.68 RCW (obscenity and pornography).
  3. A violation of chapter 9.68A RCW (sexual exploitation of children).
  4. A violent offense as defined in RCW 9.94A.030 or an attempt to commit a violent offense (i.e. Robbery in the 2nd Degree, Assault in the 2nd Degree, Manslaughter – 1st or 2nd Degree).
  5. Driving Under the Influence (DUI), RCW 46.61.502.
  6. Actual Physical Control while under the influence (Physical Control), RCW 46.61.504.
  7. Operating a railroad, etc., while intoxicated, RCW 9.91.020.


“Prior Offenses” Make You Jump More Fences

Some crimes carry enhanced penalties if you are subsequently convicted of the same offense.  Pursuant to RCW 46.61.5055(14), a “prior offense” is essentially any type of DUI or Physical Control conviction, and convictions or deferred sentences for amended charges that were originally charged as DUI, Physical Control, Vehicular Homicide, or Vehicular Assault.  See the statute for a complete list.

If the crime you are seeking to have vacated is considered a “prior offense”  then all of the following additional criteriamust be met:

  1. The offense is not excluded from being vacated (see excluded offenses above).
  2. You have not been convicted of a new crime in any state or federal court since the date you were sentenced on the crime you wish to have vacated.
  3. At least three years have passed since you completed the terms and conditions of the sentence, includingrestitution/legal financial obligations.
  4. No subsequent alcohol or drug violations within 10 years of the date of arrest for the prior offense.
  5. More than 10 years has elapsed since the date of the arrest for the prior offense.


Domestic Violence Offenses

“Domestic Violence” has an expansive definition in Washington State.  It includes people who are or were formally in a relationship, adults related by blood or marriage, adults who are or have resided together (i.e. roommates), and those who have a parent-child or grandparent-grandchild relationship.

If the crime you are seeking to have vacated involved domestic violence, you must:

  1. Provide the prosecuting attorney’s office that prosecuted you with timely notice of your motion and declaration for order vacating conviction and file the original notice with the court.
  2. You must not have been convicted of any other domestic violence offense arising out of any other incident prior to the offense which you want to have vacated (Note: It does not count as a prior offense if your application is for more than one conviction that arose out of a single incident).
  3. Five years have elapsed since you completed the terms of the original conditions of the sentence, including any financial obligations and successful completion of any treatment ordered as a condition of sentencing.
  4. You have not been convicted of any new crime in any state or federal court since you were convicted in this matter.


Offenses Not Otherwise Specified

If the conviction you want to vacate was for an offense that is not an Excluded Offense, a Prior Offense, a Conviction for Prostitution as a Victim*, and did not involve Domestic Violence, the following apply:

  1. At least three years have passed since you completed the terms and conditions of the sentence, including restitution/legal financial obligations.
  2. You have not been convicted of any new crime in any state or federal court since the date you were sentenced on the crime you wish to have vacated.

*The rules governing vacation of a prostitution are complex and different criteria apply depending on the type of prostitution offense.  If you have been convicted of a prostitution offense and you were a victim, contact an  attorney to determine if you qualify.