www.washrecord.com - Clearing Criminal Convictions & Restoring Firearm Rights

Important update regarding misdemeanor DV convictions in WASHINGTON STATE and relief from disabilities under federal law. This update affects all persons who previusly obtained a court order restoring firearm rights.

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Clearing Criminal Convictions & Restoring Firearm Rights

IN WASHINGTON STATE

This website will help you determine the following:

whether you are eligible to have a Washington state criminal conviction vacated and/or sealed;
whether you are eligible to restore the right to possess firearms if currently prohibited because of a Washington state conviction
whether you are eligible to possess firearms in Washington state if convicted elsewhere of a felony or a misdemeanor comparable to a felony in Washington state.

If you have a prohibitive offense in a state other than Washington and do not desire to possess firearms in Washington, you need to obtain legal advice from an attorney in the state in which the offense was prosecuted. To remove a firearm disability under federal law resulting from a state conviction, you must be clear to possess firearms under the law of the state in which the conviction occurred.

If you have specific questions after reviewing the information below and the FAQ , send your request by clicking on the E-mail link at the bottom of the page or call the toll free number.

VACATION OF CRIMINAL CONVICTION

IN WASHINGTON STATE

The criminal justice system serves two purposes: punishment and rehabilitation. One of the benefits of rehabilitation is the right to start with a clean slate. There are circumstances under which a person previously convicted of an offense can respond that he or she has not been convicted of that crime. Additionally, a person's civil rights lost as a result of a conviction can be restored.

An order vacating a criminal conviction removes the offense from reportable criminal history; however, it does not destroy or expunge the court file or criminal history. If the sentencing court finds that the defendant is eligible, the court may permit withdrawal of a plea of guilty or set aside a verdict of guilty and then dismiss the charges. For all purposes, including responding to questions on employment applications, the offender can then state that he or she has never been convicted of that crime. However, the conviction data is not destroyed and can be used in later prosecutions for which the conviction is an element of a crime, e.g. unlawful possession of a firearm. Similarly, the sealing of a juvenile conviction does not prevent subsequent use of the conviction. In fact, the commission of a new juvenile offense or an adult felony has the effect of nullifying the sealing order. If the juvenile record has been destroyed, the conviction can never again be used for any purpose. Under current law, a juvenile record can be destroyed only if it consists of one diversion.

FELONY CONVICTIONS

Some crimes may never be vacated; however, most Class B and C felony offenses can be dismissed and ultimately vacated from criminal history. A person may have a felony offense vacated unless one of the following applies:

The conviction is for a class A felony or attempt to commit a Class A felony
The conviction was a violent offense
The conviction was a crime against persons
The offender has a new criminal conviction since the date of discharge from supervision
The offender has criminal charges pending in any municipal, state or federal court
The conviction is for a class B felony and less than 10 years have passed since date of discharge from supervision
The conviction is for a class C felony and less than 5 years have passed since date of discharge from supervision

MISDEMEANOR CONVICTIONS

Every person convicted of a misdemeanor or gross misdemeanor offense who has completed all of the terms of the sentence may apply to have the most recent misdemeanor conviction* vacated unless any of the following apply:

The applicant has criminal charges pending in any state or federal court
The conviction was a violent offense or an attempt to commit a violent offense
The conviction was a DUI, Physical Control, operating railroad under the influence, etc.
The conviction was a violation or attempted violation of RCW 9.68 (obscenity and pornography), RCW 9.68A(sexual exploitation of children), or RCW 9A.44 (sex offenses);
The offense was a Domestic Violence (DV) crime and any one of the following factors exist:
- The applicant failed to give notice of petition to prosecutor that handled conviction
- The applicant has a prior DV conviction arising from a separate incident
- The applicant has made a false affidavit claiming no prior DV conviction
- Less than 5 years have elapsed since completion of the original conditions of the sentence, including financial obligations and successful completion of any treatment ordered
For non DV offenses, less than 3 years have elapsed since completion of the terms of the sentence, including any financial obligations
The applicant committed a new crime in any jurisdiction since the date of conviction
The applicant has previously had the record of another conviction vacated
The applicant is currently restrained, or has been restrained within 5 years prior to vacation application, by a DV protection order, no-contact order, antiharassment order, or civil restraining order which restrains one party from contacting the other party

* Current law only authorizes vacation of one misdemeanor. It may be possible to vacate multiple felonies.

SEALING CRIMINAL CONVICTIONS

Sealing criminal court records is a discretionary decision made by the court after a hearing. Notice of the hearing must be given to the prosecutor authority that handled the case, to the probation office and to the victim. Factors considered by the court include whether sealing is permitted by statute, whether there are compelling circumstances, and whether the conviction has been vacated.

When a criminal record is sealed, but the conviction has not been vacated, the court file will still indicate the type of case and the charge. Thus, it is possible for the sealing of a file to do more harm than good. For example, if a person charged with a serious, violent or sex offense that is later dismissed, the sealed file will only have the original charge and not the fact that the charge was dismissed.

Note that sealing a criminal file does not preclude use of the underlying conviction from being used if it is an element of a new offense or relevant to sentencing on a subsequent charge.

JUVENILE OFFENSES

Years ago, juvenile records of criminal offenses were sealed, and subsequently destroyed, when an offender reached a certain age or so many years had passed since the date of conviction. Presently, courts cannot routinely destroy juvenile records; however a person can apply to have his or her juvenile record destroyed or sealed.

A person can apply to have a juvenile record destroyed if the following conditions are met:

The person is 18 years of age or older, criminal history consists of only one referral for diversion, and two years have elapsed since completion of the diversion agreement
The person is 23 years of age or older, criminal history consists of only referrals for diversion, all diversion agreements have been successfully completed and no proceeding is pending against the person seeking the conviction of a criminal offense.

A person can apply to have juvenile records sealed if the following conditions are met:

The conviction is not a Class A offense
The conviction is not a sex offense
For Class B offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent five consecutive years in the community without committing any offense or crime that subsequently results in conviction
For Class C offenses other than sex offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction.
For Gross Misdemeanors and Misdemeanors, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction and the person is at least eighteen years old.
For Diversions, since completion of the diversion agreement, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction or diversion and the person is at least eighteen years old
No criminal proceeding, including diversion, is pending
Full restitution has been paid.

RESTORING THE RIGHT TO POSSESS FIREARMS

IN WASHINGTON STATE

There are two pitfalls in the firearm laws for people with prior felonies and domestic violence crimes. The first problem stems from changes over the years in Washington state and federal firearm laws - many individuals who did not lose the right to possess firearms at the time they incurred a prior felony conviction are now prohibited from owning, possessing or having a firearm within their control. The effect of these legislative changes subjects many hunters and sport shooters with a prior felony or domestic violence crime to a new felony charge: Unlawful Possession of a Firearm in the 1st or 2nd Degree.

The second issue concerns the confusing language contained in a Certificate of Discharge, which is issued upon successful completion of supervision with the Department of Corrections (DOC). A Certificate of Discharge expressly states that all civil rights lost by operation of law upon conviction are hereby restored; HOWEVER, Washington courts have clearly stated that a Certificate of Discharge does not restore a person's firearm rights. Furthermore, an order expunging, vacating or sealing criminal records is insufficient to restore the right to possess firearms under Washington law.

To avoid a felony charge of unlawful possession of a firearm, an prohibited person must have a Pardon, Annulment, Certificate of Rehabilitation or an order restoring the right to possess firearms from a superior court. There is an exception consisting of 3 requirements: (i) the conviction is for an offense committed prior to July 1, 1984, (ii) an order of dismissal was entered after successful completion of supervision, and (iii) the conviction is for an offense other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances. An offender who meets this exception is not prohibited from possessing firearms because of the offense.

CLASS B & C FELONIES (non sex offenses)

A person previously convicted as an adult or juvenile of a felony may petition a court of record to restore the right to possess firearms if all of the following apply:

The conviction is not a Class A felony or sex offense; See next section below.
More than 5 years have passed in the community without being convicted of any crime (misdemeanor or felony);
No criminal charges are currently pending in any federal, state or local court; and
The offender does not have a prior felony prohibiting the possession of firearms counted as part of the offender score.

CLASS A FELONIES& SEX OFFENSES

A person previously convicted as an adult or juvenile of a felony that is a Class A offense or sex offense must have a Pardon, Annulment, Certificate of Rehabilitation or equivalent proceeding (fact-finding hearing) for a prior felony to possess a firearm. Recently, appellate courts have held that individuals with a Class A felony or sex offense are ineligible to regain the right to possess firearms by a court procedure. See FAQ #3 for further discussion

DOMESTIC VIOLENCE OFFENSES

A person previously convicted of one of the following non felony domestic violence offenses committed on or after July 1, 1993*, - assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence - may petition to have the right to possess firearms restored if all of the following apply:

More than 3 years have passed in the community without being convicted of any crime;
No criminal charges are currently pending in any federal, state or local court;
The offender does not have a prior felony prohibiting the possession of firearms counted as part of the offender score; and
The offender has successfully completed all conditions of the sentence.

*Federal Restrictions on Firearms vs. Washington State Restrictions - Persons convicted of a non felony domestic violence offense committed before July 1, 1993, should CLICK HERE for a discussion of applicable firearm prohibitions and remedies.

PROHIBITIVE OFFENSES FROM OTHER STATES

A person convicted of a felony or misdemeanor crime of domestic violence in another state may be clear to possess firearms in the state where convicted, but prohibited from possessing firearm in Washington. Automatic restoration of firearm rights, (e.g. upon completion of probation or after so many years have passed, is insufficient to remove a firearm disability under Washington state law. Such person may need to petition for restoration of the right to possess in a Washington court.

There are numerous misdemeanors in other states that are comparable to felonies under Washington state law. Certain crimes are easily matched with Washington felonies, i.e. taking motor vehicle without permission/joyriding. Other offenses, such as theft and fraud, require an thorough review of the elements of each offense.

Washington Firearm Laws * Federal Firearm Laws * Frequently Asked Questions

PAUL T. FERRIS
Attorney At Law

  AREAS OF PRACTICE     
Criminal  Defense & Traffic Offenses
Vacation of Criminal Convictions
Restoration of Firearm Rights
NICS & CWP Denials/Appeals
     Seizure & Forfeiture of Firearms     
  
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No charge for telephone or E-mail inquiry to determine prohibitions
and eligibility for restoration of right to possess firearms

WASHINGTON STATE
Residents/Hunters & Convictions Only

Send E-mail : ptferris@washrecord.com

Call Toll Free: 1-888-231-7040

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