Due to the Washington supreme court's decision in State v. Blake, 197 Wn.2d 170, 174, 481 P.3d 521 (2021), all convictions since 1971 for simple drug possession are constitutionally void. This decision requires vacation of tens of thousands of convictions entered in the superior, district, and municipal courts. Under due process, a conviction vacated due to Blake requires a refund of any legal financial obligations and collection costs paid pursuant to that conviction. Since Blake was issued in February 2021, the state's criminal justice system has vacated over 10,000 cases, focusing first on persons currently incarcerated, under active supervision, or on warrant status. Using funds appropriated during the 2020 legislative session, efforts are ongoing to vacate additional cases and refund legal financial obligations and collection costs, but it is likely that the total number of convictions subject to Blake over the last 50 years exceed 150,000. As such, the legislature finds it is necessary to implement a concerted and coordinated procedure to vacate these convictions using a proactive and steady workflow that allows for rapid resolution of large numbers of cases over time. Because vacation of these convictions falls within the jurisdiction of the originating court, a procedure that utilizes current court rules and existing mechanisms of the state's criminal justice system is the most efficient way to vacate affected convictions. Once a conviction is vacated and a legal financial obligation refund is determined, a centralized method for disbursing refunds will most efficiently return money to affected people.
Additionally, many individuals entered into a deferred prosecution, diversion, or similar program, the successful completion of which resulted in dismissal or nonfiling of an offense that would be constitutionally void under State v. Blake. Under due process, these individuals require a refund of legal financial obligations and collection costs.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"Convictions for simple drug possession" includes all convictions or juvenile adjudications since adoption of the uniform controlled substances act of 1971 for possession of any controlled substance, attempted possession of any controlled substance, conspiracy to possess any controlled substance, or solicitation to possess any controlled substance, under the authority of statute, or an ordinance authorized by statute, where the statute or ordinance did not require proof of intentional possession of the controlled substance. It also includes convictions for offenses where a prior conviction for simple drug possession serves as an element of the subsequent offense.
"Director" means the director of the department of revenue or the director's designee.
"Legal financial obligations and collection costs" means a sum of money that is ordered by court in connection with a conviction for a crime, or assessed as part of a diversion program, deferred sentence, or similar program, and actually paid by the defendant or on the defendant's behalf, which may include restitution to the victim, statutorily imposed crime victims' compensation fees, court costs, county or interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of the conviction, or assessed as part of a diversion program, deferred sentence, or similar program which resulted in dismissal or nonfiling of a charge. It also includes penalties, interest, fees, and collection costs authorized by law for the collection or enforcement of legal financial obligations.
"Nonconviction" includes all adult and juvenile charges for simple drug possession offenses that were dismissed or not filed following successful completion of a diversion program, deferred sentence, or similar program.
In coordination with the superior court clerk or district court administrator within each county, the administrator of the administrative office of the courts shall develop comprehensive, line-item reports for each court of all persons with existing convictions for simple drug possession since 1971. The report will be based on available court records and list convictions and nonconvictions chronologically by cause number in a readily searchable and sortable format. For each cause number subject to the Blake decision, the report shall include the person's name, birth date, last known address, date of the judgment and sentence or dismissals pursuant to successful completion of a diversion program, a listing of all conviction counts for simple drug possession in the judgment and sentence or order of dismissal pursuant to successful completion of a diversion program, and a listing of all conviction counts for other offenses in the judgment and sentence. The administrator will indicate any period of time where court records are unavailable. The superior court clerk or district court administrator shall develop a similar report of all sealed cases of persons with convictions and nonconvictions of simple drug possession since 1971. This shall be kept confidential and shall only be shared with the administrator.
In compiling the report, the administrator, with the assistance of the department of corrections and the superior court clerk or district court administrator, shall prioritize cases in the following order: (a) The person is incarcerated due to a qualifying conviction; (b) the person is incarcerated with a qualifying conviction in the person's criminal history score; (c) the person is under active or inactive supervision; and (d) the person has a past conviction or nonconviction for a qualifying offense. Within six months of the effective date of this section, the administrator shall complete the report for persons under (a), (b), or (c) of this subsection. For persons under (d) of this subsection, the administrator shall complete the report by January 1, 2023. Reports compiled under this section are exempt from public disclosure.
Upon availability, the administrator shall provide completed installments of the report of convictions and nonconvictions to local public defense offices, the Washington state office of public defense, county prosecutors, and the superior court clerk or district court administrator. Local public defense offices shall provide initial review of cause numbers compiled under subsection (2)(a) through (c) of this section to determine whether a person's conviction is subject to vacation under the Blake decision and to provide an initial assessment as to case priority, unless the local jurisdiction requests such review from the Washington state office of public defense. Following such review, the local office of public defense or the Washington state office of public defense will provide the appropriate local prosecutor with a list of cause numbers compiled under subsection (2)(a) through (c) of this section to be prioritized for Blake relief. Individuals currently under the jurisdiction of the department of corrections, whose possession vacations would result in a shortened sentence, are to be prioritized for resentencing. The county prosecutor shall review each cause number on the report compiled under subsection (2)(d) of this section to determine whether a person's conviction or nonconviction data is subject to vacation under the Blake decision. A conviction or nonconviction record is subject to vacation under the Blake decision if it was a conviction or charge for simple drug possession. When a person, or his or her legal representative, informs the prosecutor that he or she is facing immigration consequences such as deportation or bars to obtaining lawful status, the prosecutor shall prioritize the case. The prosecutor shall also prioritize cause numbers compiled under reports provided by local public defense offices or the Washington state office of public defense. When the prosecutor determines that a conviction or nonconviction data is subject to vacation, the prosecutor shall prepare an ex parte motion on behalf of the state under CrR 7.8 or CrRLJ 7.8 that asks the court to vacate the person's prior convictions for simple drug possession. Such a motion shall expressly state the motion is pursuant to State v. Blake's holding that RCW 69.50.4013 is unconstitutional. By filing such a motion, the prosecutor agrees not to file additional or new charges for the acts described in the information. If the prosecutor determines that a conviction or nonconviction data is improperly included on the report due to a clerical error because the actual conviction on the judgment and sentence is not a conviction for simple drug possession, the prosecutor shall file a "Notice of Blake Correction" with the superior court clerk or the district court administrator and send notice to the affected person at the person's last known address. A copy shall also be sent to the local office of public defense or local defense administrator, or where no local office or local administrator exists, notice shall be sent to the Washington state office of public defense. Defense counsel shall be appointed to a person who has been precluded from obtaining a vacation to assist the person in understanding the person's options for challenging the decision, and to assist the person in bringing a good faith challenge to the decision. If the person is indigent as defined in RCW 10.101.010, the court or the responsible local public defense authority shall appoint counsel. For the purposes of this chapter, incarcerated persons are presumed indigent. Absent vacation of the prior conviction for simple drug possession by ex parte motion, nothing in this section precludes the prosecutor from filing additional or new charges where allowed by law.
The court shall consider the prosecutor's motion to vacate on paper without the presence of the prosecutor. If the court vacates a conviction for simple drug possession, the fact that the person has been convicted of the offense shall not be included in the person's criminal history for purposes of determining a sentence in any subsequent conviction, and the person shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, a person whose conviction has been vacated may state that the person has never been convicted of that crime. A conviction that has been vacated under this section may not be disseminated or disclosed by the Washington state patrol or local law enforcement agency to any person.
[Empty]
A court vacating a conviction for simple drug possession shall address whether legal financial obligations must be refunded to the person.
When the sole crime of conviction under a cause number is simple drug possession, the court shall order a refund of all legal financial obligations and collection costs paid under that cause number. Nothing in this act limits the ability of an affected person to challenge the refund amount as insufficient upon actual notice of the refund amount. The affected person will have a right to the assistance of counsel in reviewing the determination and in bringing a good faith challenge in the court that issued the order.
Where a cause number includes both convictions for simple drug possession and other offenses not subject to vacation under the Blake decision, legal financial obligations and collection costs paid under that cause number shall not be refunded except where it is clear on the face of the judgment and sentence that a legal financial obligation arose solely from a vacated simple possession conviction. Nothing in this act limits the ability of an affected person to challenge the refund amount as insufficient upon actual notice of the refund amount. The affected person will have a right to the assistance of counsel in reviewing the determination and in bringing a good faith challenge in the court that issued the order.
Where a cause number includes a nonconviction record, the court shall order a refund of the legal financial obligations assessed to the defendant as part of a diversion program, deferred sentence, or similar program, including drug or other therapeutic court, and actually paid by the defendant or on the defendant's behalf.
If the court determines that a refund of legal financial obligations and collection costs is appropriate, the vacation order shall direct the superior court clerk or district court administrator to cancel any unpaid legal financial obligation and collection cost balances. The order shall further direct the superior court clerk or district court administrator to compute all legal financial obligations and collection costs paid by the person that arise from the vacated counts or nonconviction record, which amounts shall be certified by the superior court clerk or the district court administrator, to the refund bureau created in section 5 of this act. Upon filing the certification, the refund obligation is transferred to the refund bureau. Following issuance of a refund under a cause number, the refund bureau shall file notice of the amounts paid with the superior or district court.
Where it is necessary to resentence a person or amend the existing sentence in connection with a vacation, the matter will proceed under the court rules with notice to the defendant. Defense counsel shall be appointed where required by law. If the person is indigent as defined in RCW 10.101.010, the court or the responsible local public defense authority shall appoint counsel. For the purposes of this chapter, incarcerated persons are presumed indigent. The court shall notify the local office of public defense or local defense administrator, or where no local office or local administrator exists, notice shall be sent to the Washington state office of public defense. Nothing in this act limits the court's sentencing authority or its authority to resentence.
The prosecutor shall take action to quash judicial warrants based solely on underlying charges for simple drug possession or other offenses where a conviction for simple drug possession serves as an element of the crime. Within nine months of the effective date of this section, the prosecutor shall certify to the administrator of the administrative office of the courts that all such warrants have been submitted to a judicial officer for action quashing the warrant. If exceptional circumstances apply, and a prosecutor cannot meet the six-month deadline, the prosecutor shall provide an estimate for a reasonable extension to the administrator of the administrative office of the courts.
Within appropriated funds, the administrator of the administrative office of the courts shall contract with each county to ensure sufficient availability of clerks, prosecutors, defenders, judicial officers, and courtroom space. The director of the state office of public defense shall contract with each county to ensure sufficient availability of defenders to complete all work required by this section within five years of the effective date of this section. Contracts to complete resentencing, vacation, and refund work under this act may be based on actual time or upon the average time necessary to complete a task. The work required by this section is deemed complete when all warrants have been quashed and all cause numbers on the report have been dismissed, vacated, resentenced, or otherwise addressed through a "Notice of Blake Correction." The superior court clerk or district court administrator shall track resolution of all cause numbers on the report. On a quarterly basis, the superior court clerk and the district court administrator shall report the following to the administrator of the administrative office of the courts: (a) Vacated cause numbers; (b) resentenced cause numbers; (c) cases where the prosecutor has filed a "Notice of Blake Correction"; and (d) the number of cases on the report awaiting action.
Nothing in this section precludes a person from filing a motion under his or her own criminal cause number to vacate a prior conviction for simple drug possession or be resentenced pursuant to Blake. Defense counsel shall be appointed where required by law. If the person is indigent as defined in RCW 10.101.010, the court or the responsible local public defense authority shall appoint counsel. For the purposes of this chapter, incarcerated persons are presumed indigent. The court shall notify the local office of public defense or local defense administrator, or where no local office or local administrator exists, notice shall be sent to the Washington state office of public defense. A motion for resentencing or vacation under Blake is not subject to the restrictions in chapter 10.73 RCW and does not adversely impact the defendant's ability to bring subsequent collateral attacks on different grounds. Nothing in this section precludes a person from appealing any order entered under this section.
Within six months of the effective date of this section, each city with a municipal court shall determine whether the Blake decision applies to any municipal convictions for simple drug possession since 1971. If requested by the city, the administrator of the administrative office of the courts shall coordinate with the municipal court administrator to develop a comprehensive report for each city of all persons with existing convictions for simple drug possession since 1971. The report will be based on available court records and list convictions and nonconvictions chronologically by cause number in a readily searchable and sortable format. For each cause number subject to the Blake decision, the report shall include the person's name, birth date, last known address, date of the judgment and sentence or dismissals pursuant to successful completion of a diversion program, a listing of all conviction counts for simple drug possession in the judgment and sentence or dismissal, and a listing of all counts for other offenses in the judgment and sentence. The administrator will indicate any period of time where court records are unavailable. The municipal court administrator shall develop a similar report of all sealed cases of persons convicted of simple drug possession since 1971.
In compiling the report, the administrator, with the assistance of the department of corrections and the municipal court administrator, shall prioritize cases in the following order: (a) The person is incarcerated due to a qualifying conviction; (b) the person is incarcerated with a qualifying conviction in the person's criminal history score; (c) the person is under active or inactive supervision; and (d) the person has a past conviction or nonconviction for a qualifying offense. Within six months of the city's request under subsection (1) of this section, the administrator shall complete the report for persons under (a), (b), or (c) of this subsection. For persons under (d) of this subsection, the administrator shall complete the report within nine months of the city's request under subsection (1) of this section. Reports compiled under this section are exempt from public disclosure.
Upon availability, the administrator shall provide completed installments of the report of convictions and nonconvictions to the local public defense offices, the Washington state office of public defense, city prosecutors, and the municipal court administrator. Local public defense offices shall provide initial review of cause numbers compiled under subsection (2)(a) through (c) of this section to determine whether a person's conviction is subject to vacation under the Blake decision and to provide an initial assessment as to case priority, unless the local jurisdiction requests such review from the Washington state office of public defense. Following such review, the local office of public defense or the Washington state office of public defense will provide the appropriate local prosecutor with a list of cause numbers compiled under subsection (2)(a) through (c) of this section to be prioritized for Blake relief. Individuals currently under the jurisdiction of the department of corrections, whose possession vacations would result in a shortened sentence, are to be prioritized for resentencing. The city prosecutor shall review each cause number on the report compiled under subsection (2)(d) of this section to determine whether a person's convictions or nonconviction data is subject to vacation under the Blake decision. A conviction or nonconviction is subject to vacation under the Blake decision if it was a conviction or charge for simple drug possession. When a person, or the person's legal representative, informs the prosecutor that the person is facing immigration consequences, such as deportation or bars to obtaining lawful status, the prosecutor shall prioritize the case. The prosecutor shall also prioritize cause numbers compiled under reports provided by local public defense offices or the Washington state office of public defense. When the city prosecutor determines that a conviction or nonconviction data is subject to vacation, the prosecutor shall prepare an ex parte motion under CrRLJ 7.8 asking the court to vacate the person's prior conviction or convictions for simple drug possession. Such a motion shall expressly state the motion is pursuant to State v. Blake's holding that RCW 69.50.4013 is unconstitutional. By filing such a motion, the prosecutor agrees not to file additional charges for the acts described in the information. If the prosecutor determines that a conviction or nonconviction data is improperly included on the report due to a clerical error because the actual conviction on the judgment and sentence is not a conviction for simple drug possession, the prosecutor shall file a "Notice of Blake Correction" with the municipal court administrator and send notice to the affected person at the person's last known address. A copy shall also be sent to the local office of public defense or local defense administrator, or where no local office or local administrator exists, notice shall be sent to the Washington state office of public defense. Defense counsel shall be appointed to a person who has been precluded from obtaining a vacation to assist the person in understanding the person's options for challenging the decision, and to assist the person in bringing a good faith challenge to the decision. If the person is indigent as defined in RCW 10.101.010, the court or the responsible local public defense authority shall appoint counsel. For the purposes of this chapter, incarcerated persons are presumed indigent.
The court shall consider the prosecutor's motion to vacate on paper without the presence of the prosecutor. If the court vacates a conviction for simple drug possession, the fact that the person has been convicted of the offense shall not be included in the person's criminal history for purposes of determining a sentence in any subsequent conviction, and the person shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, a person whose conviction has been vacated may state that the person has never been convicted of that crime. A conviction that has been vacated under this section may not be disseminated or disclosed by the Washington state patrol or local law enforcement agency to any person. Nothing in this section affects the requirements for restoring a right to possess a firearm under RCW 9.41.040.
[Empty]
A court vacating a conviction for simple drug possession shall address whether legal financial obligations must be refunded to the person.
When the sole crime of conviction under a cause number is simple drug possession, the court shall order a refund of all legal financial obligations and collection costs paid under that cause number. Nothing in this act limits the ability of an affected person to challenge the refund amount as insufficient upon actual notice of the refund amount. The affected person will have a right to the assistance of counsel in reviewing the determination and in bringing a good faith challenge in the court that issued the order.
Where a cause number includes both convictions for simple drug possession and other offenses not subject to vacation under the Blake decision, legal financial obligations and collection costs paid under that cause number shall not be refunded except where it is clear on the face of the judgment and sentence that a legal financial obligation arises solely from a vacated simple possession conviction. Nothing in this act limits the ability of an affected person to challenge the refund amount as insufficient upon actual notice of the refund amount. The affected person will have a right to the assistance of counsel in reviewing the determination and in bringing a good faith challenge in the court that issued the order.
Where a cause number includes a nonconviction record, the court shall order a refund of the fees assessed to the defendant as part of a diversion program, deferred sentence, or similar program, and actually paid by the defendant or on the defendant's behalf.
If the court determines that a refund of legal financial obligations and collection costs is appropriate, the vacation order shall direct the municipal court administrator to cancel any unpaid legal financial obligation and collection cost balances. The order shall further direct the municipal court administrator to compute all legal financial obligations and collection costs paid by the person that arise from the vacated counts or nonconviction record, which amounts shall be certified by the municipal court administrator, to the refund bureau created in section 5 of this act. Upon filing the certification, the refund obligation is transferred to the refund bureau. Following issuance of a refund under a cause number, the refund bureau shall file notice of the amounts paid with the municipal court.
Where it is necessary to resentence a person or amend the existing sentence in connection with a vacation, the matter will proceed under the court rules with notice to the defendant. Defense counsel shall be appointed where required by law. If the person is indigent as defined in RCW 10.101.010, the court or the responsible local public defense authority shall appoint counsel. For the purposes of this chapter, incarcerated persons are presumed indigent. The court shall notify the local office of public defense or local defense administrator, or where no local office or local administrator exists, notice shall be sent to the Washington state office of public defense. Nothing in this act limits the court's sentencing authority or its authority to resentence.
The prosecutor shall take action to quash any judicial warrants based solely on underlying charges for simple drug possession or other offenses where a conviction for simple drug possession is an element of the crime. Within nine months of the effective date of this section, the prosecutor shall certify to the administrator of the administrative office of the courts that all such warrants have been submitted to a judicial officer for action quashing the warrant. If exceptional circumstances apply, and a prosecutor cannot meet the nine-month deadline, the prosecutor shall provide an estimate for a reasonable extension to the administrator of the administrative office of the courts.
Within appropriated funds, the administrator of the administrative office of the courts shall contract with each city to ensure sufficient availability of clerks, prosecutors, defenders, judicial officers, and courtroom space to complete all work required by this section within five years of the effective date of this section. Contracts to complete resentencing, vacation, and refund work under this act may be based on actual time or upon the average time necessary to complete a task. The work required by this section is deemed complete when all warrants have been quashed and all cause numbers on the report have been dismissed, vacated, resentenced, or otherwise addressed through a "Notice of Blake Correction." The municipal court administrator shall track resolution of all cause numbers on the report. On a quarterly basis, the municipal court administrator shall report the following to the administrator of the administrative office of the courts: (a) Vacated cause numbers; (b) resentenced cause numbers; (c) cases where the prosecutor has filed a "Notice of Blake Correction"; and (d) the number of cases on the report awaiting action.
Nothing in this section precludes a person from filing a motion under his or her own criminal cause number to vacate a prior conviction for simple drug possession or be resentenced pursuant to Blake. Defense counsel shall be appointed where required by law. If the person is indigent as defined in RCW 10.101.010, the court or the responsible local public defense authority shall appoint counsel. For the purposes of this chapter, incarcerated persons are presumed indigent. The court shall notify the local office of public defense or local defense administrator, or where no local office or local administrator exists, notice shall be sent to the Washington state office of public defense. A motion for resentencing or vacation under Blake is not subject to the restrictions in chapter 10.73 RCW and does not adversely impact the defendant's ability to bring a subsequent collateral attack on different grounds. Nothing in this section precludes a person from appealing any order entered under this section.
The director shall establish a refund bureau for the purpose of refunding legal financial obligations and collection costs paid by persons that arise from the vacation of convictions for simple drug possession in the superior, district, or municipal courts. The director may adopt rules to establish bureau operations and refund procedures. Prior to establishment of the refund bureau, the superior court clerk, the district court administrator, or the municipal court administrator may initiate payment of legal financial obligations out of funds appropriated by the state for this purpose. If state funds are unavailable, the superior court clerk, the district court administrator, or the municipal court administrator shall certify the amount of the refund due for payment by the refund bureau.
Within appropriated funds, the refund bureau shall issue refunds of legal financial obligations and collection costs to eligible persons with vacated convictions for simple drug possession in the amounts certified by the superior court clerk, the district court administrator, or the municipal court administrator pursuant to a court vacation order.
The director shall publicize the availability of refunds to persons with vacated convictions for simple drug possession and the process for obtaining those refunds. In addition, the director shall provide specific notice to persons still living whom the superior court clerk, district court administrator, or municipal court administrator has certified under section 3 or 4 of this act are due refunds of legal financial obligations and collection costs. Such notice shall be accomplished by first-class mail to the person's last known address. To determine the last known address, the director may consult databases maintained by the department of corrections, the courts, and the department of licensing.
The refund bureau established by the director is the exclusive means to obtain a refund of any legal financial obligations and collection costs paid by a person with a prior or vacated conviction for simple drug possession. No civil action may be filed against the state, counties, or cities that have requested assistance under section 4(1) of this act, nor may such an action be filed against any officials, employees, or agents of those entities seeking a refund of legal financial obligations and collection costs, other damages, or any other type of relief in connection with a prior or vacated conviction for simple drug possession.
Any person seeking a refund of legal financial obligations and collection costs arising from a vacated conviction for simple drug possession shall have seven years from the effective date of this section to complete his or her application to the refund bureau. Any legal financial obligations and collection costs that have not been claimed within this seven-year period will escheat to the state. The refund bureau established in this section will terminate operation seven years and one month after the effective date of this section.
Except where court records are no longer available, court records showing crimes of conviction and legal financial obligation and collection cost payments are presumptively correct. A person seeking to rebut this presumption may do so only by clear and convincing evidence.
A person seeking vacation of a conviction within the time period where court records are unavailable may prove the existence of the conviction through a declaration accompanied by copies of a judgment and sentence, or official records reporting the conviction. Upon proof deemed adequate by the court, such a conviction is subject to potential vacation under section 3 or 4 of this act.
A person seeking a refund of legal financial obligations and collection costs within the time period where court records are unavailable may prove the existence of payments by declaration accompanied by direct or secondary sources demonstrating payment.
Any person contesting the existence of a conviction for simple drug possession or the amounts due for refund shall bring the matter before the court of conviction.
When presented with an order vacating a prior conviction for simple drug possession, the Washington state patrol shall remove any convictions covered by the vacation order from all criminal record information systems maintained by the Washington state patrol. In addition, the Washington state patrol shall report the vacated convictions to relevant federal authorities.
The state, its agencies, and its municipal subdivisions, as well as officials, employees, and agents of those entities, shall not be civilly liable for performing any duties pursuant to this act: PROVIDED, That such duties were performed in good faith and without gross negligence. Nothing in this section limits any statutory or common law immunity otherwise applicable to the state, its agencies, and its municipal subdivisions, as well as officials, employees, and agents of those entities.