wa-law.org > bill > 2025-26 > HB 1982 > Original Bill
The legislature finds that during the period of North America settlement in the 18th and 19th centuries, the United States federal government signed treaties with many of the Indian tribal nations living on the lands that would eventually become the state of Washington.
The legislature further finds that although such treaties often included promises to the Indian tribal nations to reserve a portion of ceded land for the exclusive use and benefit of the tribes, these promises have not always been kept.
The legislature further finds that in order to accomplish the purposes and objectives outlined by the Centennial Accord between the state of Washington and the federally recognized Indian tribes whose traditional lands and territories included parts of Washington, the state must make an unwavering commitment to address past and ongoing injustices against the federally recognized Indian tribes and their members.
The legislature therefore intends to expand provisions of state law to vacate the records of conviction of Indian tribal members who were convicted of offenses related to the exercise of treaty Indian fishing, hunting, gathering, or pasturing rights.
The legislature further intends to spread awareness and information about the process for vacating applicable convictions; fund direct representation and consultation services for individuals seeking to vacate applicable convictions; and promote better relationships between the state and Indian tribal governments.
When vacating a conviction under this section, the court effectuates the vacation by: (a)(i) Permitting the applicant to withdraw the applicant's plea of guilty and to enter a plea of not guilty; or (ii) if the applicant has been convicted after a plea of not guilty, the court setting aside the verdict of guilty; and (b) the court dismissing the information, indictment, complaint, or citation against the applicant and vacating the judgment and sentence.
Every person convicted of a misdemeanor or gross misdemeanor offense may apply to the sentencing court for a vacation of the applicant's record of conviction for the offense. If the court finds the applicant meets the requirements of this subsection, the court may in its discretion vacate the record of conviction. Except as provided in subsections (3), (4), (5), and (6) of this section, an applicant may not have the record of conviction for a misdemeanor or gross misdemeanor offense vacated if any one of the following is present:
The applicant has not completed all of the terms of the sentence for the offense, including satisfaction of financial obligations;
There are any criminal charges against the applicant pending in any court of this state or another state, or in any federal or tribal court, at the time of application;
The offense was a violent offense as defined in RCW 9.94A.030 or an attempt to commit a violent offense;
The offense was a violation of RCW 46.61.502 (driving while under the influence), 46.61.504 (actual physical control while under the influence), 9.91.020 (operating a railroad, etc. while intoxicated), or the offense is considered a "prior offense" under RCW 46.61.5055 and the applicant has had a subsequent alcohol or drug violation within 10 years of the date of arrest for the prior offense or less than 10 years has elapsed since the date of the arrest for the prior offense;
The offense was any misdemeanor or gross misdemeanor violation, including attempt, of chapter 9.68 RCW (obscenity and pornography), chapter 9.68A RCW (sexual exploitation of children), or chapter 9A.44 RCW (sex offenses), except for failure to register as a sex offender under RCW 9A.44.132;
The applicant was convicted of a misdemeanor or gross misdemeanor offense as defined in RCW 10.99.020, or the court determines after a review of the court file that the offense was committed by one family or household member against another or by one intimate partner against another, or the court, after considering the damage to person or property that resulted in the conviction, any prior convictions for crimes defined in RCW 10.99.020, or for comparable offenses in another state or in federal court, and the totality of the records under review by the court regarding the conviction being considered for vacation, determines that the offense involved domestic violence, and any one of the following factors exist:
The applicant has not provided written notification of the vacation petition to the prosecuting attorney's office that prosecuted the offense for which vacation is sought, or has not provided that notification to the court;
The applicant has two or more domestic violence convictions stemming from different incidents. For purposes of this subsection, however, if the current application is for more than one conviction that arose out of a single incident, none of those convictions counts as a previous conviction;
The applicant has signed an affidavit under penalty of perjury affirming that the applicant has not previously had a conviction for a domestic violence offense, and a criminal history check reveals that the applicant has had such a conviction; or
Less than five years have elapsed since the person completed the terms of the original conditions of the sentence, including successful completion of any treatment ordered as a condition of sentencing, but excluding the payment of financial obligations;
For any offense other than those described in (f) of this subsection, less than three years have passed since the later of the applicant's release from supervision or probation; the applicant's release from total and partial confinement, as defined in RCW 9.94A.030; or the applicant's sentencing date;
The offender has been convicted of a new crime in this state, another state, or federal or tribal court in the three years prior to the vacation application; or
If the applicant is a victim of sex trafficking, prostitution, or commercial sexual abuse of a minor; sexual assault; or domestic violence as defined in RCW 9.94A.030, or the prosecutor applies on behalf of the state, the sentencing court may vacate the record of conviction if the application satisfies the requirements of RCW 9.96.080. When preparing or filing the petition, the prosecutor is not deemed to be providing legal advice or legal assistance on behalf of the victim, but is fulfilling an administrative function on behalf of the state in order to further their responsibility to seek to reform and improve the administration of criminal justice. A record of conviction vacated using the process in RCW 9.96.080 is subject to subsections (7) and (8) of this section.
Every person convicted of violating any statute, ordinance, or rule regarding the regulation of fishing, hunting, gathering, or pasturing activities, including, but not limited to, former RCW 75.08.260, 75.12.060, 75.12.070, 75.12.160, 77.16.020, 77.16.030, 77.16.040, 77.16.060, and 77.16.240 who claimed to be exercising a treaty Indian fishing, hunting, gathering, or pasturing right, may apply to the sentencing court for vacation of the applicant's record of the misdemeanor, gross misdemeanor, or felony conviction for the offense. If the person is deceased, a member of the person's family or an official representative of the tribe of which the person was a member may apply to the court on behalf of the deceased person. Notwithstanding the requirements of RCW 9.94A.640, the court shall vacate the record of conviction if:
The applicant is a member of a tribe that may exercise treaty Indian fishing, hunting, gathering, or pasturing rights at the location where the offense occurred; and
The state or local government has been enjoined from taking enforcement action of the statute, ordinance, or rule to the extent that it interferes with a treaty Indian fishing, hunting, gathering, or pasturing right as determined under , 384 F. Supp. 312 (W.D. Wash. 1974), or , 302 F. Supp. 899 (D. Oregon 1969), or State v. Wallahee, 3 Wn.3d 179 (2024), and any posttrial orders of those courts, or any other state supreme court or federal court decision.
Every person convicted of a misdemeanor cannabis offense, who was 21 years of age or older at the time of the offense, may apply to the sentencing court for a vacation of the applicant's record of conviction for the offense. A misdemeanor cannabis offense includes, but is not limited to: Any offense under RCW 69.50.4014, from July 1, 2004, onward, and its predecessor statutes, including RCW 69.50.401(e), from March 21, 1979, to July 1, 2004, and RCW 69.50.401(d), from May 21, 1971, to March 21, 1979, and any offense under an equivalent municipal ordinance. If an applicant qualifies under this subsection, the court shall vacate the record of conviction.
If a person convicted of violating RCW 69.50.4011(1) (b) or (c), 69.50.4013, 69.50.4014, or 69.41.030(2) (b) or (c) completes a substance use disorder program and files proof of completion with the court, or obtains an assessment from a recovery navigator program established under RCW 71.24.115, an arrest and jail alternative program established under RCW 36.28A.450, or a law enforcement assisted diversion program established under RCW 71.24.589, and has six months of substantial compliance with recommended treatment or services and progress toward recovery goals as reflected by a written status update, upon verification the court must vacate the conviction or convictions.
A person who is a family member of a homicide victim may apply to the sentencing court on the behalf of the victim for vacation of the victim's record of conviction for prostitution under RCW 9A.88.030. If an applicant qualifies under this subsection, the court shall vacate the victim's record of conviction.
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Except as provided in (c) of this subsection, once the court vacates a record of conviction under this section, the person shall be released from all penalties and disabilities resulting from the offense and 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. For all purposes, including responding to questions on employment or housing applications, a person whose conviction has been vacated under this section may state that he or she has never been convicted of that crime. However, nothing in this section affects the requirements for restoring a right to possess a firearm under RCW 9.41.041. Except as provided in (b) of this subsection, nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.
When a court vacates a record of domestic violence as defined in RCW 10.99.020 under this section, the state may not use the vacated conviction in a later criminal prosecution unless the conviction was for: (i) Violating the provisions of a restraining order, no-contact order, or protection order restraining or enjoining the person or restraining the person from going on to the grounds of or entering a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location, a protected party's person, or a protected party's vehicle (RCW 10.99.040, 10.99.050, 26.09.300, 26.26B.050, 26.44.063, 26.44.150, or 26.52.070, or any of the former RCW 26.50.060, 26.50.070, 26.50.130, and 74.34.145); (ii) stalking (RCW 9A.46.110); or (iii) a domestic violence protection order or vulnerable adult protection order entered under chapter 7.105 RCW. A vacated conviction under this section is not considered a conviction of such an offense for the purposes of 27 C.F.R. 478.11.
A conviction vacated on or after July 28, 2019, qualifies as a prior conviction for the purpose of charging a present recidivist offense as defined in RCW 9.94A.030 occurring on or after July 28, 2019.
The clerk of the court in which the vacation order is entered shall immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of the conviction. The Washington state patrol and any such local police agency shall immediately update their records to reflect the vacation of the conviction, and shall transmit the order vacating the conviction to the federal bureau of investigation. A conviction that has been vacated under this section may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies.
For the purposes of this section, "cannabis" has the meaning provided in RCW 69.50.101.
Subject to the availability of amounts appropriated for this specific purpose, the office of public defense shall establish a position for a staff tribal liaison counsel. The staff tribal liaison counsel's responsibilities shall include:
Performing outreach to tribal governments to identify and support tribal members with convictions related to the regulation of fishing, hunting, gathering, or pasturing activities that may be eligible for vacation pursuant to RCW 9.96.060(4);
Developing and disseminating educational material and information to tribal governments and their members about the process for vacating applicable convictions pursuant to RCW 9.96.060(4), and the services that affected tribal members may be eligible to receive from the office of public defense; and
Providing direct representation and consultation services to individuals seeking to vacate applicable convictions pursuant to RCW 9.96.060(4), including by filing motions to vacate and appearing at related legal proceedings.
The director shall:
Administer all state-funded services in the following program areas:
Trial court criminal indigent defense, as provided in chapter 10.101 RCW;
Appellate indigent defense, as provided in this chapter and RCW 10.73.150;
Representation of indigent parents qualified for appointed counsel in dependency and termination cases, as provided in RCW 13.34.090 and 13.34.092;
Extraordinary criminal justice cost petitions, as provided in RCW 43.330.190;
Compilation of copies of DNA test requests by persons convicted of felonies, as provided in RCW 10.73.170;
Representation of indigent respondents qualified for appointed counsel in sexually violent predator civil commitment cases, as provided in chapter 71.09 RCW; and
Representation of indigent persons who are acquitted by reason of insanity and committed to state psychiatric care as provided in chapter 10.77 RCW;
Subject to availability of funds appropriated for this specific purpose, provide access to counsel for indigent persons incarcerated in a juvenile rehabilitation or adult correctional facility to file and prosecute a first, timely personal restraint petition under RCW 10.73.150. The office shall establish eligibility criteria that prioritize access to counsel for youth under age 25, youth or adults with sentences in excess of 120 months, youth or adults with disabilities, and youth or adults with limited English proficiency. Nothing in this subsection creates an entitlement to counsel at state expense to file a personal restraint petition;
Subject to the availability of funds appropriated for this specific purpose, appoint counsel to petition the sentencing court if the legislature creates an ability to petition the sentencing court, or appoint counsel to challenge a conviction or sentence if a final decision of an appellate court creates the ability to challenge a conviction or sentence. Nothing in this subsection creates an entitlement to counsel at state expense to petition the sentencing court;
Provide access to attorneys for juveniles contacted by a law enforcement officer for whom a legal consultation is required under RCW 13.40.740;
Submit a biennial budget for all costs related to the office's program areas;
Establish administrative procedures, standards, and guidelines for the office's program areas, including cost-efficient systems that provide for authorized recovery of costs;
Provide oversight and technical assistance to ensure the effective and efficient delivery of services in the office's program areas;
Recommend criteria and standards for determining and verifying indigency. In recommending criteria for determining indigency, the director shall compile and review the indigency standards used by other state agencies and shall periodically submit the compilation and report to the legislature on the appropriateness and consistency of such standards;
Collect information regarding indigent defense services funded by the state and report annually to the advisory committee, the legislature, and the supreme court;
Coordinate with the supreme court and the judges of each division of the court of appeals to determine how appellate attorney services should be provided;
Subject to the availability of funds appropriated for this specific purpose, provide access to direct representation and consultation services to individuals eligible to vacate convictions pursuant to RCW 9.96.060(4).
Except as otherwise provided in this section, the office of public defense shall not provide direct representation of clients.
In order to protect and preserve client rights when administering the office's statutory duties to provide initial telephonic or video consultation services, managing and supervising attorneys of the office of public defense who meet applicable public defense qualifications may provide limited short-term coverage for the consultation services if office of public defense contracted counsel is unavailable to provide the consultation services. The office shall provide services in a manner consistent with the rules of professional conduct, chapter 42.52 RCW, and applicable policies of the office of public defense.
The office of public defense may facilitate and supervise placement of law clerks, externs, and interns with office of public defense contracted counsel, in a manner consistent with the Washington admission and practice rules, the rules of professional conduct, chapter 42.52 RCW, and applicable policies of the office of public defense.
Employees of the office of public defense may provide pro bono legal services in a manner consistent with the rules of professional conduct, chapter 42.52 RCW, and applicable policies of the office of public defense. The policies of the office of public defense must require that employees providing pro bono legal services obtain and provide to the office a written statement, signed by any pro bono client, acknowledging that:
The pro bono legal services are provided by the employee acting in the employee's personal capacity and not as an employee of the office of public defense; and
The state of Washington may not be held liable for any claim arising from the provision of pro bono legal services by the employees of the office of public defense.
The office of public defense shall retain the written statements in a manner consistent with records relating to potential conflicts of interest.