Expunge, Vacate, and Seal

Having a criminal record may prevent a person from gaining employment, finding housing, or being granted citizenship. It may even put someone at risk for deportation. The law provides three different types of relief to people with criminal records that may mitigate the negative effects of such a record. Criminal records can be expunged, vacated, or sealed, depending on the circumstances.

Expungement is a remedy that is available to people who have been investigated and charged with a crime by a law enforcement agency, but the charge is never actually filed or the case is dismissed without a trial or further legal action. 

According to RCW §10.97.060, the information in the arrest report can be expunged from the law enforcement's records. The statute applies only to records that are maintained by the law enforcement agency that conducted the investigation. A waiting period of two years from the date of the investigation is required. At that point, the information in the file is classified "non-conviction data," and it may be expunged. The process of having information expunged either involves:

1. Writing a letter to the law enforcement agency requesting that they delete the information, or
2. Obtaining a court order instructing the agency to destroy those records.

If the person requesting the expungement writes a letter, the agency may choose to deny the request for expungement if:

1. The case involved a deferred prosecution;
2. The person requesting the expungement has had a prior conviction for a felony or gross misdemeanor;
3. The person requesting the expungement has been arrested for or charged with another crime during the intervening period.

However, the court's authority to order expungement is not limited by the above.

Vacating a conviction is a remedy that is available to people who have been found guilty of a crime, but have served their sentences and have lived without further convictions for a specified period of time.

In the State of Washington, records of criminal convictions are kept by the State Patrol and also reported on the federal level to the FBI. As a result, any background check will reveal these convictions. If a person completed the terms of his sentence and lived an exemplary life since, he may still experience difficulty as a result of his criminal record. Conviction data can also be critical for people who are not U.S. Citizens. Having a criminal record may be grounds for deportation and it can also prevent a person from becoming a citizen.

In this scenario, a person may choose to vacate the conviction. This means that a person can petition the court to have the finding of "guilty" removed from his record, whether it was the result of a guilty plea or a guilty verdict. If the petition is successful, the judge will state that the has removed the finding of guilty or the plea of guilty and has, instead, entered a finding of not guilty and has dismissed the case. Once this takes place, the petitioner can legally say that he was never convicted of the crime.

The criteria that a person must fulfill in order to vacate a conviction depends on the circumstances of his case, namely the offense that he was convicted of. For example, RCW §9.96.060 provides that if the offense was a misdemeanor, such as theft, he would have to demonstrate that it has been three years since the completion of the terms of his sentence and that he has not violated the law during that time. If the offense involved domestic violence he must demonstrate that it has been five crime-free years since the completion of his sentence. Further, RCW §9.94A.640 provides that for a felony conviction, the waiting periods are longer: five years for a class C felony and ten years for class B felony.

There are, however, some limitations to a person's ability to vacate a conviction. For example, a person cannot vacate a DUI conviction.

The third step in clearing your criminal history is sealing the court records. Whenever a person appears in court, a docket is created, which refers to both the physical and electronic files relating to that person's case. Any background search of his criminal record will include a check with both the Washington State Patrol and the court docket. Expunging records only applies to the records kept by the State Patrol. That's why sealing is also necessary. According to GR 15, moving to seal means that the court docket—both the physical and electronic files—can be ordered closed to public viewing. This means that a background check would only turn up the subject's name and case number; no other information would be available.

Sealing is discretionary, which means that the court has the authority to determine whether or not to grant the motion. In assessing a person's motion to seal, the court will weigh five factors, called the Ishikawa Factors (based on a precedent-setting case):

1. There has to be a serious and imminent threat to an important interest
2. Anyone present in the court (usually the victim) must be given the chance to object to the sealing
3. Sealing must be the only viable way to protect the interest named
4. The public's interest in the file remaining open must be outweighed by the offender's need for sealing
5. The period of time for which the sealing will be in effect must be specified. In most cases it will be permanent.

The serious and imminent threat referred to in the first Ishikawa Factor usually involves the loss of a job or denial of employment. It can also be an immigration issue: the threat of deportation or denial of citizenship.

Expunge, vacate and seal - the three steps in clearing criminal records. In most cases, it is best to take all three steps.

The first step should be vacating to rid your record of a guilty conviction. The second step should be sealing your docket so that court records are not accessible via background checks. And, after the two-year (or longer) waiting period is satisfied, the third step should be expunging the arrest records at the Washington State Patrol and the FBI.

Expunge, vacate and seal are legal remedies that effectively erase criminal justice records kept by law enforcement agencies and the courts. However, these legal remedies do not automatically impact records held in private databases. For example, a company may have done a background check on you and stored your records in its database. In order to ensure that private entities update their databases to reflect your current legal status, you can identify those entities that you know have conducted background checks on you and provide proof of your current legal status, so that their database and reports on you will be up-to-date.

The process of clearing your record can be complicated, particularly given the numerous steps and consideration of various factors. Having a clear record is crucial and it is strongly advised that you enlist in the help of a skilled criminal defense attorney for the best possible results.