H-1538.1
SECOND SUBSTITUTE HOUSE BILL 1492
State of Washington 68th Legislature 2023 Regular Session
By House Appropriations (originally sponsored by Representatives
Simmons, Peterson, Santos, Doglio, Pollet, Macri, and Reed)
READ FIRST TIME 02/24/23.
1 AN ACT Relating to providing relief for persons affected by State
2 v. Blake; amending RCW 9.94A.640, 9.96.060, and 72.09.480; adding a
3 new chapter to Title 9 RCW; and creating a new section.
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
5 NEW SECTION. Sec. 1. The definitions in this section apply
6 throughout this chapter unless the context clearly requires
7 otherwise.
8 (1) "Clerk" means the clerk of the superior court or the court
9 administrator of a court of limited jurisdiction.
10 (2) "Collection cost" means any fee or cost paid to a collection
11 agency as a result of a qualifying conviction or qualifying
12 nonconviction. A collection cost is "readily ascertainable" if the
13 clerk or collection agency maintains a record or accounting of the
14 collection cost or the defendant has provided documentation of the
15 collection cost.
16 (3) "Cost of supervision" means any supervision fee or cost paid
17 to the department of corrections.
18 (4) "Document-verified collateral cost" means any fee or cost
19 paid for a person's participation in a program or activity resulting
20 from a qualifying conviction or qualifying nonconviction, including
21 but not limited to electronic home monitoring costs, work release
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 1 fees, costs of drug evaluations, cost of treatment, probation costs,
2 and jail time in lieu of legal financial obligations, the payment of
3 which is verified by documentation carrying sufficient indicia of
4 reliability per guidance issued by the administrative office of the
5 courts. A fee or cost paid to a collection agency is not considered a
6 document-verified collateral cost.
7 (5) "Legal financial obligation" means a sum of money that is
8 ordered by a superior, district, or municipal court of the state of
9 Washington for legal financial obligations, which may include
10 restitution to the victim, court costs, county or interlocal drug
11 funds, court-appointed attorneys' fees, accrued interest, costs of
12 defense, fines, and any other financial obligation that is assessed
13 on the defendant as a result of a qualifying conviction or qualifying
14 nonconviction. A legal financial obligation does not include any fee
15 related to reissuing or reinstating a driver's license under chapter
16 46.20 RCW. A nonconviction legal financial obligation is "readily
17 ascertainable" if the clerk, adult or juvenile court, prosecuting
18 authority, or any diversion unit administered by the jurisdiction
19 maintains a record or accounting of the nonconviction legal financial
20 obligation or the defendant has provided documentation of the
21 nonconviction legal financial obligation.
22 (6) "Prosecuting authority" means any prosecuting attorney as
23 defined in RCW 36.27.005 or 35.23.111 or any attorney authorized to
24 prosecute cases in courts of limited jurisdiction.
25 (7) "Qualifying conviction" means any conviction or juvenile
26 adjudication of a qualifying offense.
27 (8) "Qualifying nonconviction" means any adult or juvenile charge
28 for a qualifying offense that was dismissed or not filed following
29 successful completion of a diversion program, deferred prosecution,
30 therapeutic court, or similar program. However, if the person was
31 participating in the diversion program, deferred prosecution,
32 therapeutic court, or other program, for multiple charges on an
33 indictment, information, or affidavit where one or more charged
34 offenses were not qualifying offenses, then the charge for the
35 qualifying offense does not constitute a qualifying nonconviction
36 under this chapter.
37 (9) "Qualifying offense" includes:
38 (a) Any of the following offenses where possession of a substance
39 is criminalized without proof that the person knowingly possessed the
40 substance: RCW 69.50.4013 (simple possession of a controlled
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 1 substance, 2004-2021); RCW 69.50.401 (simple possession of a
2 controlled substance, 1971-2004); RCW 69.33.020 or 69.33.230 (simple
3 possession of narcotics, 1951-1971); RCW 69.50.401 (possession of
4 less than 40 grams of marijuana, 1971-2004); RCW 69.50.4014
5 (possession of less than 40 grams of marijuana, 2004-2021); RCW
6 69.41.030 and 69.41.070 (possession of legend drugs, 1973-2004); RCW
7 69.41.030 (possession of legend drugs, 2004-2021); RCW 69.50.4011
8 (possession of counterfeit substances, 2004-2021); RCW 69.50.412 (use
9 of drug paraphernalia to inject, ingest, inhale, or otherwise
10 introduce a controlled substance into the human body, 1981-2021);
11 (b) Any offense under any municipal code that criminalizes
12 possession of a controlled substance, legend drug, counterfeit
13 substance, or drug paraphernalia without proof that the person
14 knowingly possessed the controlled substance, legend drug, or
15 counterfeit substance or drug paraphernalia;
16 (c) Any attempt, conspiracy, or solicitation to commit any
17 offense under (a) or (b) of this subsection;
18 (d) Any of the following offenses when such an offense was
19 predicated solely on a conviction of any offense under (a), (b), or
20 (c) of this subsection: RCW 9.41.040(2)(a) (unlawful possession of a
21 firearm, 2003-2021); RCW 9.41.040(1)(b) (unlawful possession of a
22 firearm, 1994-2003); and
23 (e) Any offense that the state supreme court rules
24 unconstitutional in light of State v. Blake, No. 96873-0 (decided
25 February 25, 2021).
26 NEW SECTION. Sec. 2. Any person with a qualifying conviction is
27 eligible to have such conviction vacated by the sentencing court
28 under this chapter. The restrictions under RCW 9.96.060 and 9.94A.640
29 do not apply to motions or applications filed under this chapter. Any
30 person with a qualifying conviction or qualifying nonconviction is
31 eligible for a refund of all legal financial obligations, collection
32 costs, and document-verified collateral costs paid as a result of the
33 qualifying conviction or qualifying nonconviction as provided in this
34 chapter.
35 NEW SECTION. Sec. 3. (1) Upon receipt of a report from the
36 clerk under section 10 of this act, a prosecuting authority shall
37 review all qualifying convictions and qualifying nonconvictions
38 within his or her jurisdiction.
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 1 (a) For each qualifying conviction and qualifying nonconviction,
2 the prosecuting authority shall:
3 (i) Coordinate with the appropriate clerk and other appropriate
4 entities to develop a list of all legal financial obligation amounts
5 and readily ascertainable collection cost amounts paid as a result of
6 the qualifying conviction or qualifying nonconviction; and
7 (ii) Determine whether the person is currently serving a sentence
8 for any offense under the supervision of the department of
9 corrections, and in such case, notify the office of public defense
10 that the person may be eligible for resentencing under section 6 of
11 this act.
12 (b) For each qualifying conviction, the prosecuting authority
13 shall file an ex parte motion by January 1, 2026, with the applicable
14 sentencing court to dismiss and vacate the conviction under this
15 chapter.
16 (c) For each qualifying nonconviction where legal financial
17 obligations or readily ascertainable collection costs were paid as a
18 result of the qualifying nonconviction, the prosecuting authority
19 shall file an ex parte motion by January 1, 2026, with the applicable
20 sentencing court to refund the legal financial obligations and
21 readily ascertainable collection costs under this chapter.
22 (d) A motion under this section may include documentation of the
23 amount of legal financial obligations and readily ascertainable
24 collection costs paid by the person as a result of the qualifying
25 conviction or nonconviction. The prosecuting authority is not
26 required to notify the defendant of the motion, and the court shall
27 consider a motion under this section without requiring the presence
28 of the parties or counsel.
29 (2)(a) The clerk must conduct an objectively reasonable search
30 for collection cost records and nonconviction legal financial
31 obligation records. The adequacy of a search is judged by the
32 standard of reasonableness. A reasonable search usually begins with
33 the clerk or designated employee deciding where the records are
34 likely to be and who is likely to know where they are.
35 (b) In conducting an objectively reasonable search for collection
36 cost records, in addition to searching the clerk's own records, the
37 clerk shall issue a written request to any current or past contracted
38 collection agency to provide all records and allocations of payments
39 made under qualifying convictions or qualifying nonconvictions. After
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 1 issuing a written request, the clerk shall also make substantial
2 efforts to obtain the requested records from the collection agency.
3 NEW SECTION. Sec. 4. A person with a qualifying conviction or
4 qualifying nonconviction may file a motion with the sentencing court
5 for a vacation of the conviction and a refund of legal financial
6 obligation, collection cost, or document-verified collateral cost
7 amounts, or a refund of nonconviction legal financial obligation,
8 collection cost, or document-verified collateral cost amounts,
9 regardless of whether a prosecuting authority is expected to file a
10 motion under section 3 of this act. A person moving for a vacation of
11 a conviction or a refund under this section shall set the motion for
12 hearing in accordance with local court rules, but in no case sooner
13 than 30 days from the date of filing, unless the court finds good
14 cause to shorten the time. For a motion for a refund brought under
15 this section, the prosecuting authority shall furnish the applicant
16 with the amount paid by the applicant for any legal financial
17 obligations and readily ascertainable collection costs 14 court days
18 in advance of the hearing. The movant may also demonstrate payment of
19 legal financial obligations, collection costs, and document-verified
20 collateral costs by submitting copies of records demonstrating
21 payment and by sworn declaration. The prosecuting authority may
22 object to a motion for vacation of the conviction only on the basis
23 that the conviction is not a qualifying conviction.
24 NEW SECTION. Sec. 5. (1) Upon a determination by the court to
25 vacate any qualifying conviction under this chapter, the court shall:
26 (a) Set aside each guilty plea or verdict, dismiss with prejudice
27 the count or counts in the information, indictment, complaint, or
28 citation that relates to the qualifying conviction or convictions,
29 and vacate the judgment and sentence;
30 (b) Quash any outstanding warrants related to the vacated
31 qualifying conviction;
32 (c) Release the individual from all penalties and disabilities
33 resulting from the qualifying conviction;
34 (d) Prohibit the qualifying conviction from being included in a
35 person's criminal history for the purposes of determining bail in a
36 subsequent prosecution or a sentence in any subsequent conviction;
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 1 (e) Direct the clerk to notify the department of licensing to
2 reinstate the person's privilege to drive, if suspended due to the
3 qualifying conviction;
4 (f) Direct the clerk to cancel any unpaid balances of legal
5 financial obligations imposed upon the person as a result of the
6 qualifying conviction, and direct the clerk to remove the legal
7 financial obligations from collection if collection of legal
8 financial obligations was assigned to a private collection agency;
9 (g) Order the administrative office of the courts to refund any
10 documented legal financial obligation, collection cost, and document-
11 verified collateral cost amounts paid as a result of the qualifying
12 conviction;
13 (h) Include in the order a statement informing the person of the
14 right to challenge the amount refunded under the order and that if
15 the person is indigent, the person may request publicly funded
16 counsel, subject to available funding for this purpose, to assist in
17 reviewing the refund determination and bringing a motion to amend the
18 refund amount, as provided in section 8 of this act; and
19 (i) Include in the order a statement that the defendant's
20 conviction is vacated as unconstitutional pursuant to State v. Blake,
21 197 Wn.2d 170, 481 P.3d 521 (2021).
22 (2) Upon receipt of a court order to vacate a qualifying
23 conviction under this section, the clerk shall transmit notice of the
24 vacate order to the Washington state patrol identification section,
25 and shall transmit the certification, and all documentation in
26 support of the certified amount to the administrative office of the
27 courts refund bureau.
28 (3) Upon receipt of notice of a court order to vacate a
29 qualifying conviction under this section, the Washington state patrol
30 shall have no more than seven working days to update their records to
31 reflect the vacation of the qualifying conviction, and shall transmit
32 the order vacating the conviction to the federal bureau of
33 investigation. A qualifying conviction that has been vacated under
34 this section may not be disseminated or disclosed by the state
35 patrol, prosecuting authority, or local law enforcement agency to any
36 person, except other criminal justice enforcement agencies.
37 (4) A qualifying conviction vacated under this chapter may not be
38 included in the person's criminal history for purposes of determining
39 bail in a subsequent prosecution or a sentence in any subsequent
40 conviction, and the person must be released from all penalties and
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 1 disabilities resulting from the offense. For all purposes, including
2 responding to questions on employment applications, a person whose
3 qualifying conviction has been vacated may state that he or she has
4 never been convicted of that crime. For any qualifying conviction
5 vacated under this section, a prosecuting authority may not refile
6 any charges for acts alleged in the original indictment, information,
7 or affidavit of probable cause filed in relation to the qualifying
8 conviction, and may not file new or additional charges based on acts
9 alleged in any law enforcement report from which the qualifying
10 conviction arose.
11 NEW SECTION. Sec. 6. (1) If the vacation of a qualifying
12 conviction under this chapter affects a sentence imposed for a
13 separate conviction by altering the person's criminal history as
14 defined in RCW 9.94A.030, then the person may file a motion to be
15 resentenced in the applicable sentencing court. Any person with a
16 qualifying conviction who is serving a current or pending sentence
17 under the supervision of the department of corrections has a right to
18 court-appointed counsel for resentencing proceedings under this
19 section consistent with the provisions set forth in chapter 10.101
20 RCW. For the purposes of this chapter, individuals incarcerated under
21 the jurisdiction of the department of corrections are presumed
22 indigent.
23 (2) A prosecuting authority may not file or refile previously
24 dismissed charges contained in any indictment, information, or
25 affidavit of probable cause filed in relation to the conviction for
26 which the person qualifies for resentencing under this section, and
27 may not file new or additional charges based on acts alleged in any
28 law enforcement report from which the conviction arose for which the
29 person is being resentenced.
30 NEW SECTION. Sec. 7. (1) Upon determination by the court of any
31 valid motion to refund legal obligations for any qualifying
32 nonconviction, the court shall:
33 (a) Direct the clerk to cancel any unpaid balances of legal
34 financial obligations imposed upon the person as a result of the
35 qualifying nonconviction, and direct the clerk to remove the legal
36 financial obligations from collection if collection of legal
37 financial obligations was assigned to a private collection agency;
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1 (b) Provide the clerk with an approved itemized and totaled
2 amount of documented legal financial obligation, collection cost, and
3 document-verified collateral cost amounts to be refunded; and
4 (c) Order the administrative office of the courts to refund any
5 documented legal financial obligation, collection cost, and document-
6 verified collateral cost amounts paid as a result of the qualifying
7 nonconviction.
8 (2) The clerk shall transmit the certification to the
9 administrative office of the courts refund bureau.
10 NEW SECTION. Sec. 8. (1) Within three years of issuance of a
11 refund amount from the refund bureau, a person may challenge the
12 amount of any legal financial obligation or collection cost