Category: Vacating Convictions

Seattle Municipal Court Marijuana Arrests to be Dismissed

The Seattle Times reported today that Seattle City Attorney Pete Holmes and Seattle Mayor Jenny Durkan plan to vacate and dismiss all misdemeanor marijuana-possession convictions prosecuted by the city before pot was legalized in Washington. A few things to keep in mind about this plan. First, this only affects cases filed in Seattle Municipal Court, because Pete Holmes’ office only prosecutes crimes in that court, not misdemeanor marijuana charges filed across the street in King County District Court or felony charges filed across the street in King County Superior Court. If a person was arrested for misdemeanor marijuana possession in Seattle by a Seattle Police officer, their charge would likely have been filed in Seattle Municipal Court and will now be dismissed. But if a person was arrested by another law enforcement agency, such as the King County Sheriff, Washington State Patrol, University of Washington Police Department, or Port of Seattle Police, their charge typically is sent to the King County Prosecuting Attorney, who files the charge in King County District Court. So if someone was arrested for possession of marijuana near the University of Washington by a Seattle police officer, their charge gets dismissed. But if a person was arrested for possession of marijuana near the University of Washington by a University of Washington police officer, their conviction would not be dismissed and remain. Maybe King County Prosecutor Dan Satterburg will follow Pete Holmes and Jenny Durkan’s lead, but for now, that disparity exists.

Anyone who is getting their conviction vacated and dismissed based on this announcement should also follow up with the Washington State Patrol and make sure that all records of the offense are deleted from the publicly available Washington State Patrol Identification and Criminal History Section’s database. This database is often used by background check companies, employers, and landlords, to check a person’s criminal history in Washington state. The Washington State Patrol is stingy about removing records from this database when a case is dismissed for any reason other than the person is actually innocent of the offense. For instance, if an offense is dismissed pursuant to a deferred sentence, the Washington State Patrol will still typically report that the person was arrested for the offense, and that the offense was dismissed pursuant to a deferred sentence (so the employer or landlord who uses this database is still aware of the offense and could use this information against the person). I would hope that Pete Holmes and Jenny Durkan insist that the cases they are dismissing are completely removed from this database.

And finally, even after the case is dismissed, the record of the conviction can still easily be found online, for free, at the Seattle Municipal Court’s online case information database. So even if the case is dismissed, and even if the case is removed from the Washington State Patrol’s database, an employer or landlord can search the court’s case information and find out that the person is a pot head.

 

The different types of deferrals under Washington law

The general premise of a deferral in the criminal justice system is simple; stay out of trouble for a period of time, complete whatever conditions are imposed (treatment, fines, ect.), and the charges against you get dismissed. Under Washington law, there are many forms of a deferral but the specifics of each deferral can vary greatly depending on which particular deferral is being used. The following provides a brief summary of the various deferrals that are available under Washington law:

Deferred Prosecutions
A deferred prosecution is the most intense and lengthy form of deferral under Washington law. The details of the program are specified in RCW 10.05, with the most onerous requirement being a two year chemical dependency or mental health treatment program. By statute, the person must remain crime free for a minimum period of five years before the case is dismissed. While a person can technically enter a deferred prosecution on just about any type of gross misdemeanor or misdemeanor offense, typically, people utilize the deferred prosecution on a DUI offense. The one catch is a person can only have one deferred prosecution on a DUI offense (or any RCW title 46 vehicle offense) in their entire life. So it is common for people to use their one deferred prosecution, and the two years of treatment, on a second or third DUI offense. While the deferred prosecution on a DUI offense will ultimately end in a dismissed charge if successfully completed, the Department of Licensing (DOL) still requires an ignition interlock on a person’s vehicle for a minimum of one year (or five or ten years, depending on the person’s criminal history). And even after the DUI is dismissed, it still counts as a prior DUI conviction for sentencing purposes if the person ever gets charged with another DUI. The DUI offense will also appear on the person’s driving record, for life, even after the court dismisses the charge.

Deferred Sentences
Deferred Sentences are available on any gross misdemeanor or misdemeanor offense under Washington law (except DUI and Physical Control) and are governed by RCW 3.66.067. Unlike a deferred prosecution, which has conditions set by statute that cannot be waived by the judge, the terms of a deferred sentence are left to the discretion of the judge. The only statutory requirement is that the length of the deferred sentence cannot be more than two years. A person cannot receive a deferred sentence on a charge of DUI or Physical Control, but they can if the charge is reduced (to say, a Reckless Driving or Negligent Driving). However, just as the case with deferred prosecution, DOL still treats a deferred sentence as a conviction. So it still goes on a person’s driving record and still imposes whatever driver’s license suspension would come if the sentence was suspended (not deferred). In other words, the deferred sentence is treated as a conviction in every conceivable way except that it does result in a dismissed charge.

Deferred Finding
A deferred finding is only available on infractions (like a speeding ticket). It is not available for a criminal offense. A deferred finding is governed by RCW 46.63.070(5) and allows an infraction to be deferred for a maximum of one year. A person is only allowed one deferred finding on a moving violation every seven years.

Stipulated Order of Continuance (or Pre-Trial Diversion Agreement)
A Stipulated Order of Continuance is a contract made between the defendant in a criminal case and the prosecutor. The agreement is a contract, and is not governed by statute like the deferrals above. So the terms of the contract can be negotiated by the defendant and the prosecuting attorney (including the length and treatment requirements). The judge is not a party to the contract so typically, a judge lacks the power to modify the contract. Because this form of deferral is made at the pre-trial stage of the case, before any plea or sentencing occurs, technically, the person entering this form of deferral can truthfully state they were never convicted of the offense. In Pierce and Kitsap Counties, a Stipulated Order of Continuance is referred to as a Pre-Trial Diversion Agreement. An example of this type of contract can be found here.

Why jail booking photos in Washington State cannot be found on the internet

There are some entertaining celebrity booking photos available on the internet. These celebrity booking photos are posted on the internet because in some States, booking photos are considered a public record. There are several unsavory internet businesses that capitalize on this law threatening to publish a person’s booking photo online unless the person pays them a fee. If the person gives in to the extortion demands, there will inevitably be another web site that threatens to do the same thing. In other words, once posted, it is essentially impossible to remove the person’s booking photo from the internet.

Fortunately, Washington State does not consider booking photos to be public records. Specifically, RCW 70.48.100 states that “the records of a person confined in jail shall be held in confidence.” The statute lays out several exceptions, such as a court order directing the release of the record. Since the booking photo is taken within the jail and is used for correctional purposes, it is considered confidential under this law. So unlike citizens in other states, those arrested for a crime in Washington state do not have to worry about their booking photo appearing on the internet. Keep in mind that while a booking photo is not available to the public, the record of arrest, conviction, and the police reports are available to the public and can be posted on the internet.

If you do find a Washington State booking photo on the internet, please contact me. I am not convinced that every jail in Washington honors RCW 70.48.100 and some may be unlawfully releasing booking photos to the public.

What do you mean I can’t have a copy of my own police report?

You’ve been charged with a crime, hire an attorney, and make an appointment to go over the police reports with that attorney. At the conclusion of the meeting, you ask the attorney if you can have a copy of the police report to share with your friends, family, employer, or whoever else you think should have an opportunity to read the police reports. The answer your attorney is ethically required to give to you is, “due to court rule CrRLJ 4.7(g)(3), I am prohibited from giving you a copy of the discovery, i.e. the police report in this case.” Huh? Yes, there is a court rule that says your attorney cannot give you a copy of the police reports, assuming they received the police reports from the prosecutor as discovery in the case. The rule makes sense for serious felony cases like murder and sex offenses. In a murder case, the discovery may contain the address and phone numbers for the witnesses and the court doesn’t want the defendant to go whack all the witnesses. In a sex offense, the discovery may contain something illegal (like child porn) and the court doesn’t want the defendant to have a further opportunity to exploit the victim. But in more simple criminal cases, like a DUI, this rule makes no sense. The good news is there are some easy ways to get around this rule. First off, the rule itself says your attorney can give you a copy of the discovery if the prosecutor and court agree to it. So you can always make the request to the judge. Also, the defendant (or any person for that matter) can make a public records request to the law enforcement agency requesting the police report. If your attorney obtained the report via a public records request or a DOL hearing on a DUI case, your attorney can provide the report to you without violating the court rule, since the court rule only applies to “discovery” provided by the prosecutor. And finally, while the rule says the attorney must maintain “exclusive custody” of the material, you can always read the police report in your attorney’s office, and take very detailed notes about the police report.

Background Check Mess

Prior to the invention of computers, or the internet, a person could be convicted of a crime without the world knowing about it. George W. Bush did his best to sweep his 1976 DUI under the rug. But today, in Washington State, every police record is available to the public under the Public Records Act. The same is true for court and arrest records. It is getting increasingly difficult to keep an arrest hidden, regardless of the final outcome of the case. So what can a person do to pull a George W. Bush and try to hide a DUI arrest? To answer this question, we must first look at where background check companies, and the public in general, get their information from.

In Washington State, the Washington State Patrol (WSP) maintains the official publicly available database of arrest and conviction records, the Washington Access to Criminal History (WATCH). For $10, anyone can run anyone else’s name in the database. Generally, if a person is arrested, booked in jail, and finger printed, there is going to be an entry for the arrest in the WATCH database. So even if it takes the prosecutor several months to file charges against the person, the record of arrest will still be available to the public shortly after the arrest. This is true even if the prosecutor decides to never file charges (for at least the first 12 months after the arrest). Once you are convicted (or acquitted) of the offense, the WATCH database will be updated with that information.

In some situations, the law allows you to vacate an arrest and conviction records from the WATCH database. And some folks who are arrested get lucky, and never have their arrest and conviction entered into WATCH (possibly because they never spent any time in jail on the offense). However, employers will probably utilize a private background check
company rather than just run a WATCH report. Typically, these companies not only pull data from WATCH, but also the court’s own Judicial Information System (JIS). So even if you are lucky enough to avoid a record in WATCH, chances are the case information will be available on JIS, and therefore, appear on a background check. The JIS record will show what charge was originally filed, and what the final outcome of the case was. So if the prosecutor completely overcharges a criminal case, and it ends up being resolved with an infraction (like a speeding ticket), all of that information will be available on JIS and therefore, on a background check. Even if a person’s charge is dismissed, it will not be too difficult for the world to find out what the person was originally charged with.

Washington’s current laws are not set up to address this predicament. Under Washington law, in certain situations, one can vacate an offense, which legally dismisses the offense. The court then orders the WSP to delete the record of the offense from WATCH. But, if the
background check company is relying on both JIS and WATCH for their information, that only solves half the problem. So even after the record is deleted from WATCH, it may still appear on background checks. Information cannot be deleted from JIS, so the only way to “hide” the information on JIS is to seal the court file, which is only allowed in very specific situations. In reality, once information makes it into these databases, it is very difficult to ever get the information out of the database.

If a person thinks there is incorrect information on a background check that has prevented them from receiving employment, there may be potential recourse under the Fair Credit Reporting Act (FCRA). While the FCRA does not apply to all background checks, if the FCRA does apply, that person is granted certain rights under the FCRA. Consult an attorney to determine if the FCRA applies to a particular case.