Wednesday, February 17, 2010

Expungement - Legal Unicorn or Justice Found?

"Expungement" is the term most commonly associated with "cleaning up" a criminal history. However, in the State of Washington that term does not appear in any statute. Here, the term is "Deletion" and all of the rules about when you can get it are found in RCW 10.97

The very short answer is that the only way you can be eligible to have criminal history information "deleted" is if you are never convicted of a crime. The arrest records can be "deleted", but only if the case does not end in conviction. But many times short answers don't provide all of the answers. What about the court record? Is a court a "criminal justice agency" within the meaning of the statute? Is a court record "criminal history record information"? Therein lies the problem - the problem that leaves the Deletion statute sometimes looking more like a legal unicorn, and less like a means to deliver justice to the wrongly accused.

So let's say you are charged with a crime. You did not commit this crime. You are found not guilty by a jury, or the prosecutor dismisses the case because a lack of evidence - or an abundance of evidence that shows you did not commit a crime. Yes, you can destroy the arrest records but the court record? I believe the answer is "no." And the answer lies in the definition of "criminal history record information" found in the deletion statutory scheme at 10.97.040:

(1) "Criminal history record information" means information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release.

The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except:

(a) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons;

(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;

(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;

(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;

(e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers' or other operators' licenses and pursuant to RCW 46.52.130;

(f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW 47.68.330;

(g) Announcements of executive clemency.

The only thing you can "delete" from your record is "criminal history record information." RCW 10.97.060. So, even though the case is dismissed, the court record remains.

But can we find a glimmer of hope in the catch-all proivision at the end of RCW 10.97.060???

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