Adult Vacation of Misdemeanor Records

In Washington, there are only a handful of ways to "get something off your record." The first thing to understand is that you don't really have a permanent record that keeps track of high school grades and suspensions. You do have a credit score, criminal record, and court records.

The criminal record consists of a database maintained by the Washington State Patrol and possibly one maintained by the FBI. The FBI attempts to maintain records from all 50 States if the States provide the information to them. In Washington, if you are charged with a crime, there will be a record of your arrest and the charge. Both will be public records. The record of the arrest will be with the police department and the court. The record of the charge and what happens in the case will be available at the court. Only in the rarest of cases would you be able to seal an adult record.

In most cases, the best you will get in Washington is a dismissal. A dismissal can come in one of several ways: 1) the prosecutor can just up and dismiss the case by filing a motion with the court; 2) the court can dismiss the case based on a defense motion; 3) the accused can compromise certain misdemeanors (pay civil compensation to the victim and request the court dismiss the case); 4) the parties can agree to a pre-trial resolution that results in a dismissal; 5) the accused can ask the court to defer their sentence; 5) the accused can entered a deferred under RCW 10.05; 6) or the accused can ask the Court to vacate the record of conviction after a certain time period. There will also be some sort of record of the case, but usually, if the case is dismissed it is not considered a conviction and does not have to be reported to employers and the like. In some cases, like that of a deferred sentence, you have to plead guilty and are convicted up until the end of the deferral period. So, if the sentence is deferred for one year, you must complete all the requirements in a year in order for your case to be dismissed.

A deferred prosecution under RCW 10.05 is a very statutory procedure that is only available once in a life time. It requires the accused to believe that they are not innocent of the charge and that they have a mental health or substance issue that needs to be treated to prevent future criminal behavior. That is just the beginning, the accused must then enter a two year treatment program followed by three years of probation. If the accused is able to complete these terms, then the case gets dismissed.

Lastly, a convicted person can apply for a vacation (dismissal) of a misdemeanor. This is also only available once. It can only be done with the latest misdemeanor conviction. The sentence must be completed and all fines paid off. Depending on the nature of the crime, a certain time period must pass and then the person can ask the court to vacate the guilty plea and dismiss the case.

The Domestic Violence Tag in Washington (for Misdemeanors)

In Washington State, virtually any crime can carry a domestic violence ("DV") tag. In some cases, the tag itself does nothing. In others, it adds additional consequences if you are found guilty. However, there is no crime itself called "domestic violence."

For a crime to carry the DV tag, there does not actually have to be any "violence" involved. The DV tag can be added if the relationship committed by "one family or household member against another." So, if you stole your brother's phone, that could be a domestic violence offense.

What is a "family or household member?" Under RCW 10.99.020(2), family or household member is defined as: "spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren."

As you can see, this is a very broad definition, and even includes roommates.

So why does the DV tag matter? Well, in a lot of cases it makes no practical difference. If you are committed of Theft 3 or Theft 3-DV, there is no mandatory difference in the punishment the court gives you. It may get treated differently by the court and by future employers or landlords, however.

But, for some cases, it does make a difference at sentencing. For the crimes of Assault 4, Coercion, Stalking, Reckless Endangerment, Trespass 1, some protection order violations, and No-Contact Order violations, you will lose your right to possess or own a firearm upon conviction. Additionally, you will receive a slight enhancement to your fines and may be made to provide a DNA sample (through a cheek swab) for the DNA registry. Further, some DV crimes will count as "points" for a felony offender score.

So, if you are charged with a DV offense, be sure to consult an attorney, as convictions can have long lasting effects that you may not be aware of.

Washington Misdemeanor Probation Violations

Misdemeanor probation violations in Washington are a bewildering experience for many people.

In many jurisdictions, people are actually sentenced to the maximum sentence allowed by law, 364 days in jail for a gross misdemeanor, or 90 days for a simply misdemeanor, and then have most of that jail time "suspended." So, that jail time is just dangling over their head for the period of their probation, which coincidentally is sometimes also the maximum allowed by law, two years or five years, depending on the offense.

As an example, if you were to be convicted of Theft 3rd Degree, a gross misdemeanor, you may be sentenced to 364 days in jail with 363 days in jail and two years of probation. That means you only serve one day in jail up front. Let's say one of the conditions of your probation is not to commit any law violations during your probation. No criminal law violations seems to make sense, right?

So, roughly 18 months after your sentence, you go fishing without a license, get a trip permit violation, or fail to have the title of a vehicle transferred to you within 45 days. Unbeknownst to you, these are crimes. So, you get charged with Failure to Transfer Title within 45 Days. You go to court for that, you plead guilty and get a 364 day sentence with 364 days suspended (no jail time up front) and a fine. Then, a month later, you get a summons on your Theft 3 case for a probation violation alleging that your crime of Failure to Transfer Title violated your probation on your Theft 3. Yikes, doesn't that violate double jeopardy to be punished twice for the same crime? Nope - not according to the Courts of Washington. In fact, even if you went to trial and won your Failure to Transfer Title case, they could still bring a probation violation against you and win it under City of Aberdeen v. Regan, a 2010 Washington State Supreme Court case.

So, what happens to you at this probation violation hearing? During the course of your probation, the Court has the discretion to impose any or all of your suspended sentence. So that 363 days that was not previously imposed can be utilized to sentence you. There are no guidelines and very few limits on the discretion of the Court. This should be juxtaposed with a felony community custody violation (felony probation), which is subject to guidelines laid out under RCW 9.04A.737 and also under the Department of Correction's agency guidelines.

There are no similar guidelines for misdemeanor probation. As you can imagine, this can lead to a dramatic disparity in sentencing from Court to Court. You could have no jail time revoked, 10 days of jail revoked, 30 days of jail revoked, or 180 days of jail revoked (revoked meaning you have to serve that amount of time as your sentence) and as long as the Court has some sort of justification for its ruling, you have no legitimate means of challenging the probation violation revocation.

Further, you are not protected by the full panoply of rights that you had before you were sentenced. In fact, your rights are basically limited to those guaranteed by due process, which is very few. That means that hearsay evidence can be used against you, if it is "reliable." The government is not required to prove the probation violation beyond a reasonable doubt, in fact the level of proof required is much, much lower. This is partially what the holding in Aberdeen v. Regan was based on. Because the burden of proof is lower at a probation violation, just because the State could not convict you at a trial, does not mean that they could not have proven the case at a much lower burden of proof. Conversely, if you are convicted at trial, because the burden of proof is higher, the government can sometimes just rely on that conviction to prove the probation violation. You may even receive more jail time on the probation violation than you did on the underlying crime!

The upside to broad discretion if that Courts have the ability to craft rulings, so if you had a very sympathetic case, you could get a very sympathetic sentence. The downside is that there could be a massive disparity in misdemeanor probation violation sentences from jurisdiction to jurisdiction.

The same problem used to exist for felony offenses. The Legislature then passed the Sentencing Reform Act to address the issue. However, nothing similar was done to misdemeanors, presumably because they are considered lesser crimes where the maximum sentences are 90 days or 364 days, as opposed to five years or higher for felonies. However, 364 days can be a long time if you are in jail for it and some more uniformity and guidance in regard to misdemeanor and misdemeanor probation violations could be helpful.

The Intersection between Mental Health and the Criminal Justice System Part I

One thing that becomes more and more obvious from participating in and observing the criminal justice system on a daily basis is that a large number of the people involved have mental health and/or substance abuse issues. The substance abuse issue is sometimes a form of self-medicating for the mental health issue. Often times, these are the people that I see over and over in the court room. Aside from the occasional ordering of mental health treatment as part of probation, if the person is competent enough to make it that far, nothing is really done to address the underlying issues.

Countless resources are consumed by repeat offenders. The Office of Financial Management for the State of Washington put together a study regarding Jail Diversion for People with Mental Illness in 2016. The study was done because Washington was seeing that the incidence of people with mental health issues very prevalent in the criminal justice system. Out of this group of people 70% had at least two arrests in a one-year period, and 67% had between two and five referrals to have their competency restored to even be able to stand trial (usually through forced medication).

The unfortunate truth is that society has given up on many of these people. They have no family or support. They are not able to function as you or I would on a day-to-day basis. Often times they are homeless or living out of homeless shelters. The only resources they obtain are those from charities and the government, such as social security or Medicaid. They have no means of transportation except for their feet or a beaten down bicycle, which may get stolen (or may be stolen itself).

Mental health funding is woefully inadequate and under the current legal schemes there are no good solutions. The law does not favor forcing assistance on someone who does not want it, even if they are not really of sound mind to make decisions in their own interest. The thresholds for civil commitment are also very high, and rightly so, as that would entail holding and housing someone in a mental health institution. However, this leaves the criminal justice system to deal with the fallout when a homeless person with mental health issues steals a sandwich and a 6-pack from the local grocery store.

There are no good solutions currently. Really, a re-working of the system would be required in order to even begin addressing the problem. The question that always occurs to me is where are the families? Occasionally, a parent or sibling will show up and acknowledge that Jimmy is just too much for them to handle and their resources were stretched too thin, so they just gave up. This is where education, and probably the government, should intervene. If programs were available for earlier interventions and were known about and easily accessible, then more families may be able to stay involved. Per the persons in the pre-trial mental health diversions, housing, case management, and work were some of the highest ranked diversion services, and that makes sense.