Vacating or expunging a negligent driving case in Washington can get tricky. The district attorneys often oppose these cases. Here are notes from an attorney who successfully argues for his client to have his misdemeanor for negligent driving (pled down from Driving Under The Influence) vacated (expunged):
Notes for hearing on motion to vacate (RCW. 9.96.060) a negligent driving (RCW 46.61.5249) conviction (misdemeanor) in Washington from eight years ago. The district attorney is opposing the motion to vacate on grounds that the petitioner is not eligible and must meet a 10-year waiting period.
NOTES FOR LEGAL ARGUMENTS THAT AFFECT ELIGIBLITY
The prosecution’s argument that Petitioner ineligible under 2 (c) requires two elements to be met, neither are met in this case.
First, the offense has to be a priorable under 46.61.5055. Petitioner’s offense is only a priorable under that section for 7 years. So, currently, it is not priorable. If I understand the prosecution’s argument, it is that section 61.502 can make it priorable if Petitioner has 3 more alcohol related offenses within the next 2 years, that is condition-precedent that has not occurred and therefore this single offense is not a priorable. Even if Petitioner were to get 3 related offenses in two years, the court granting this order would not affect the prosecution’s ability to use this offense as a prior.
The second element required for the prosecution’s argument is that the court must read the last clause of paragraph 2(c) to create a waiting period where it is clear the legislature wasn’t intending to create a waiting period.
The legislature did create clear waiting periods in this section, and when they did they used the language “less than 3 years have elapsed” or “less than 5 years have elapsed.”
If the legislature wanted a waiting period, the last sentence would have said “and less than 10 years have elapsed.”
The prosecution may be reaching this conclusion in order to effectuate meaning to paragraph G, which disqualifies anyone with a subsequent conviction, believing that to give paragraph “G” meaning requires reading the last clause of paragraph 2 (c) as a waiting period. There is no need to invoke a cannon of statutory construction to reach such strained result. Paragraph 2 (c) and G are not in conflict. 2(c) specifically references violations and paragraph g specifically references convictions. 2(c) is a much broader term.
Accepting the prosecution’s argument would create the absurd result that this misdemeanor based on negligence would have a waiting period that is twice as long as an offense for domestic violence and the same as a class B felony.
Vacating the record only protects him from public discrimination. It still can be accessed by law enforcement and it still be used in a later prosecution.
NOTES FOR FACTUAL ARGUMENTS THAT AFFECT WORTHINESS
The petitioner may be called as a witness. Info to get on the record?
- Age
- Prior to this event in 2005, any convictions?
- Prior to this event in 2005, any arrests?
- Going back to 2005, were you surprised by results of the blood alcohol test?
- Did later find out why
- When was the last time you consumed alcohol
- Is there any chance that you will get an alcohol driving offense in the future?
- Does your work require you to submit to background checks?
- Could this conviction on your record cause an employer to discriminate against you?
- You are 63 years old, how much longer do you plant to work?
- When you accepted the plea agreement, where you told that you would be able to have this record vacated in three years?
CLOSING ARGUMENTS
Eligible & deserving as any offender ever was, he is 4 years past the waiting period.
Vacating this record causes no threat to the public, the prosecution can still use it as a prior if he gets another offense,— and lastly, vacating this record will be a great benefit to Petitioner, his family and society.
