2013 Legislative Update
This past legislative session the legislature contemplated making two substantial changes to the laws relating to the expungement of criminal records. Both attempts, for the time being, have failed.
First, the legislature considered changing the “vacate” law for misdemeanor convictions, which would have allowed persons to vacate up to four non-felony convictions from their criminal history. (See Substitute House Bill #1087) When a conviction is vacated, the guilty finding is removed and the charge is dismissed. Record of the conviction is removed from the official criminal history. Presently, a person may vacate only a single misdemeanor conviction. Therefore, the proposed change in law would have a profound impact for persons with more than one non-felony conviction. But, for the time being, this law will not change.
Second, the legislature considered changing the law for juvenile offenders to require that almost all records of juvenile cases be immediately sealed. (Engrossed Substitute House Bill #1651; Second Substitute Senate Bill #5689) The juvenile court statutes differ from other rules in that the act of sealing a file also acts to vacate any conviction associated with the file. Presently, all juvenile records are public record, but a person may seek to vacate and seal records as early as two years following the conclusion of the case. Therefore, this proposed change in law would also have a profound impact. But, for the time being, this law will no change.
Last, as we wrote earlier, the State Supreme Court will be reviewing the Court of Appeals decision in the case Encarnacion v. Hundtofte. Argument is scheduled for June 13, 2013. The Encarnacion decision has had a profound impact on the ability to seal court records to help persons pass background checks for employment purposes. We will post the Court’s decision later this year.
Legislature Considers Major Overhaul to DUI Laws
Motivated by the tragic events involving DUI fatalities earlier this year, the Legislature is considering major changes to the State’s DUI laws. These changes will likely go into effect later this year.
The most pronounced changes to the law will likely relate to increased jail terms for “repeat offenders” and increased use of ignition interlock devices. Presently, mandatory minimum jail terms for repeat offenders escalate from 30 to 120 days based on the number of prior convictions within a seven year period. A fifth DUI in 10 years is a felony offense with a standard range of 22-29 months. Under proposed changes, the mandatory minimum jail terms for repeat offenders will begin at 130 days and can go as high as 280 days based on the number of prior convictions within a seven year period. A fourth DUI in 10 years would be a felony offense with a standard range of 22-29 months. (Substitute House Bill #2030) The legislature intends to create a “24/7” program to allow persons to serve a portion of these jail sentences out of custody; but it remains to be seen what this program will look like, who will run it, and most importantly – how much it will cost.
It is also anticipated that the ignition interlock laws will change as well. For repeat offenders, the legislature wants to require immediate impoundment of the person’s vehicle upon arrest, and require that the vehicle may not be released from impoundment until it is installed with an ignition interlock device. The legislature may also eliminate the employer vehicle exemption from the ignition interlock law; meaning persons who drive a vehicle owned by their employer may have to install the ignition interlock device in the employer’s vehicle.
Right now, the legislature is considering several proposed law changes covering a wide range of issues. No one knows what the final legislation will look like. Our office is keeping apprised of this legislative undertaking, and we will post appropriate updates on our website as it becomes more clear how the new law changes will impact Washington drivers.
Supreme Court Agrees to Review Court File Sealing Case.
Last week the State Supreme Court decided to review the Court of Appeals ruling in Encarnacion v. Hundtofte, 169 Wn. App. 498 (2012). The decision in Encarnacion substantially restricts the ability of judges to seal or redact court files to protect privacy rights of individuals who must pass background checks to find a job or lease an apartment.
The trial judge in Encarnacion redacted court records after applying all constitutional and statutory requirements, yet the Court of Appeals held the judge abused his discretion. According to the Court of Appeals, a petitioner must demonstrate “exceptional circumstances” beyond showing actual harm to employment or housing. Hopefully, the Supreme Court’s decision to review Encarnacion shows the Court is interested in restoring judicial discretion to seal or redact court files when real harm is shown to important interests like employment and housing, considering the fact that almost every job and every lease application requires consent to a background check.
Legislature to Consider Changing Law to Allow Vacation of More Than One Misdemeanor Conviction.
Washington law provides individuals who have certain types of criminal convictions on their record the opportunity to have the convictions dismissed and removed from their official criminal history. This is called “vacation,” and applies to certain felonies, misdemeanors, and gross misdemeanors.
An illogical quirk in this law has been that while it is conceivable an individual could vacate several felony convictions, an individual is limited to vacating only one misdemeanor/gross misdemeanor conviction.
The Legislature is now considering changing this unfair limitation. House Bill No. 1087 (HB 1087) would expressly allow individuals to vacate more than one misdemeanor/gross misdemeanor conviction if they meet certain statutory conditions. Our office will be watching this development closely and will present updated blog entries to report on the progress of this important legislation. If you have any questions about this issue please feel free to contact our office.
Title: King County Superior Court Agrees DUI Defendants Can Receive Deferred Sentence After DUI Conviction.
A King County Superior Court Judge has ruled on appeal that district court judges have the authority to give persons convicted of DUI a deferred sentence. The King County Prosecutor’s Office had appealed the trial court’s sentence after our client received a deferred sentence following a DUI trial. The Superior Court Judge agreed with our argument that the DUI sentencing law is confusing where it addresses a trial judge’s discretion to impose a deferred sentence. In this situation a Court must interpret the law in a manner that favors the criminal defendant. In this case, the Superior Court Judge interpreted the law as providing trial judges the authority to enter a deferred sentence.
A deferred sentence is a rare type of sentence to receive on a DUI case. Once all conditions of sentence have been completed, the defendant can ask the judge to withdraw the guilty finding and dismiss the DUI charge completely. While this does not act as a “vacation” of the conviction, it is an amazing outcome to have our client’s conviction dismissed after a lengthy trial process.