Do not let the title of this blog fool you, I am not discussing going on vacation and being arrested for DUI, rather I am talking about whether You can remove a DUI from Your criminal record.
Like many things in the law the answer is Yes!-Sort of. A DUI arrest typically triggers the filing of the criminal charge and prosecution for DUI here in Washington State and in many instances with the right defense counsel that charge can be reduced from DUI to something less. That reduction is the key removing the so-called DUI. However, to be clear a DUI conviction cannot be removed, only the convictions for lesser offenses that flow from the original charge can be removed.
The typical lesser charges and convictions are Reckless Driving – RCW 46.61.500, Reckless Endangerment – RCW 9a.36.050, and Negligent Driving, First Degree – RCW 46.61.5249. As an aside, if you are thinking or asking yourself; “what about a Negligent Driving, Second Degree? Stop there. That is a traffic infraction and not only is there no need to remove it because it is not a “conviction” because there it is not a crime, but you received some pretty good legal representation.
To be clear DUI convictions cannot be removed, but all lesser offense can be, as long as certain rules are followed. The rules are as follows and a person seeking to vacate must sign a declaration and a background check confirming the declaration will be done.
- There can be no current criminal charges pending in any court of this state or another state, or in any federal court (RCW 9.96.060(2)(a));
- The offense is NOT Driving while under the influence (“DUI”), RCW 46.61.502, nor is it Actual physical control while under the influence, RCW 46.61.504; Operating a railroad, etc. while intoxicated, RCW 9.91.020; An offense considered a “prior offense” under RCW 46.61.5055 and there is a subsequent alcohol or drug violation within 10 years of the date of arrest for the prior offense. This rule is tricky because the reduced charges above are ALL prior offense but as long as there has been no subsequent “alcohol violation” then the conviction can be removed.
If, however the prior offense is for Vehicular Homicide while under the influence of intoxicating liquor or any drug. (RCW 46.61.520), Vehicular Assault while under the influence of intoxicating liquor or any drug. (RCW 46.61.522), Vehicular Homicide or Vehicular Assault committed in a reckless manner or with disregard for the safety of others if the original charge was for Vehicular Homicide or Vehicular Assault while under the influence of intoxicating liquor or any drug then you are seeking to vacate a felony rather than a misdemeanor or gross misdemeanor and then there are different rules.
- Notice to the prosecuting attorney's office that prosecuted the offense along with written notice of the petition to vacate ;
- A copy must also be filed with the court where the conviction was recorded;
- It has been at least three years since having completed the terms and conditions of the sentence, including restitution/legal financial obligations. This is a rule that many forget about and the rule that prohibits a timely vacation. It must be 3 years since the fine was paid in full. I mention the fine specifically because most people have everything done quickly but because fines are repaid on payment plans that delays the clock some.
- There is no conviction of any new crime in this state, nor in any other state, or federal court since the conviction was entered.
- There has never been another conviction vacated.
- There is currently no restraining order, nor has there ever been one entered within the last five years by a domestic violence protection order, a no-contact order, an antiharassment protection order, or a civil restraining order which restrains one party from contacting the other party.
Essentially if the DUI arrest and the conviction for a lesser crime is the only thing you have ever
been charged and convicted with and its more than 3 years since the sentence was complete you are likely
eligible to vacate the criminal conviction.
Once a criminal conviction has been vacated, the law states that You shall be released from all penalties and disabilities resulting from the offense. Furthermore, when vacated the Court order states that “The clerk of the court shall immediately transmit a certified copy of this order to the Washington State Patrol and to county sheriff or local law enforcement agency and these agencies shall immediately update their records to reflect the vacation of the conviction of the offense.” It is further ordered that “the Washington State Patrol shall transmit a copy of this order to the Federal Bureau of Investigation. The Washington State Patrol or local law enforcement agency may not disseminate or disclose a conviction that has been vacated, any person, except to other criminal justice enforcement agencies.”
As a result if you are held back from employment due to a conviction stemming from a DUI arrest or if you live in these northern counties want to travel to Canada, or if you just want to restore your good name, vacating the conviction from the DUI arrest is the first and greatest step to gain access to job opportunities or traveling north.
While these are straight forward the best strategy is to engage the services of a lawyer to make this as quick as possible. In cases where the person has everything I need at their fingertips a vacation can be done as quick as 2 weeks, but the average time is about 30 days.