What Is the First-Time Felony Waiver in Washington?

Washington’s first-time felony waiver, set out in RCW 9.94A.650, lets a sentencing judge step outside the standard range for an eligible felony and impose up to 90 days in a county jail instead of state prison, usually paired with community custody. It is discretionary, not automatic, and not every felony or every defendant qualifies.¹

Who Qualifies

Three personal conditions have to be met before a judge can even consider the waiver:

You have never been convicted of a felony in Washington, in any other state, or under federal law.
You have never participated in a deferred prosecution program for a felony.
The current felony is not one the statute excludes.¹

The deferred prosecution rule surprises people. If you once faced a felony charge and resolved it through a deferred prosecution agreement, you have already used your eligibility, even if that earlier case was eventually dismissed. The statute treats prior deferred prosecution participation the same as a prior felony conviction for disqualification purposes.

Which Felonies Are Excluded

Even if you personally qualify, the waiver is unavailable for several categories of offense:

Violent offenses. Washington defines this term broadly. It includes every Class A felony and attempts or conspiracies to commit one, plus second-degree assault, second-degree robbery, second-degree arson, first- and second-degree manslaughter, second-degree kidnapping, drive-by shooting, and DUI-related vehicular assault or vehicular homicide.²
Any felony classified as a sex offense under the Sentencing Reform Act.
Manufacturing, delivering, or possessing with intent to deliver a narcotic in Schedule I or II, or methamphetamine in any form. Selling any Schedule I controlled substance for profit is also out, with an exception for cannabis leaves and flowering tops.
Felony DUI or felony physical control of a vehicle while intoxicated.¹

Because all Class A felonies are automatically violent offenses, the waiver is realistically limited to eligible Class B and Class C felonies. Crimes like first-degree murder, first-degree kidnapping, and first-degree assault are out through the Class A rule without the statute naming them. The statute does not list firearms or deadly weapons as a standalone bar, but most weapon felonies are Class A or otherwise classified as violent, which excludes them anyway.

What the Sentence Looks Like

If the judge grants the waiver, it replaces the standard sentencing range for the offense. The confinement cap is 90 days, served in a county jail or a county-contracted facility rather than state prison. For many Class B and Class C felonies whose standard ranges run into months or years, that is a substantial reduction.¹

The court can also impose up to six months of community custody, Washington’s term for supervised release. If treatment is ordered as part of the sentence, community custody can extend to cover the treatment period, up to one year total. During that time the court may require you to pay legal financial obligations, perform community restitution work, and comply with standard supervision conditions. The sentence always includes a requirement that you commit no new offenses.

How Judges Decide

Eligibility opens the door; it does not walk you through it. The waiver is normally raised by the defense at sentencing, and the prosecutor often takes a position. When the state opposes, the request is harder to win.

The judge may order a presentence investigation report from the Department of Corrections, though this is discretionary.³ Victim impact statements can also weigh in. Courts look for signs that you are unlikely to reoffend: steady employment, family stability, treatment participation, cooperation with law enforcement, and genuine accountability. The burden to show that is on you.

What Happens If You Violate the Terms

Noncompliance can unwind the waiver. If a probation officer or prosecutor reports a violation, the court holds a hearing. A missed appointment or a late payment might draw a warning, modified conditions, or extended supervision. A new criminal charge during community custody is the fastest way to lose the waiver outright. If the court revokes it, you are resentenced under the standard range for the original felony, which can mean significantly more time in custody.

What the Waiver Does Not Fix

The waiver reduces your sentence. It does not reduce the charge, erase the felony, or remove it from your record. The conviction still appears on background checks run by employers, landlords, and licensing boards. Washington does not provide automatic expungement of adult convictions.⁴

Professional licensing boards in fields like healthcare, finance, education, and law enforcement generally ask about felony convictions regardless of how the sentence was structured. A waiver does not change your duty to disclose, and national licensing systems typically look at whether the conviction would preclude licensure under state law, not at whether a reduced sentence was imposed.

For non-citizens, the stakes are higher and the waiver provides no protection. Federal immigration law defines “conviction” on its own terms. Under 8 U.S.C. 1101(a)(48), a conviction exists for immigration purposes whenever a court enters a formal judgment of guilt, or whenever the person pleads guilty or admits facts warranting a finding of guilt and the judge imposes any punishment or restraint on liberty.⁵ A first-time felony waiver involves a guilty plea or verdict followed by jail time and supervision conditions, which satisfies the federal test. USCIS does not treat a state’s rehabilitative sentencing choice as a reason to disregard the conviction. State-court orders that alter a sentence matter for immigration purposes only when based on a procedural or substantive defect in the underlying case.⁶ Depending on the offense, a felony conviction under the waiver can trigger deportability, bar adjustment of status, or affect naturalization. If you are not a U.S. citizen, talk to an immigration attorney before accepting any plea, including one paired with a waiver.

Travel can also be affected. Canada, the most common issue for Washington residents, can treat a foreign felony conviction as grounds for inadmissibility regardless of how the sentencing state treated the offense, and it does not automatically recognize foreign waivers or pardons. Rehabilitation and temporary resident permit options exist but take time to pursue.⁷

Clearing the Conviction Later

There is a path to clearing the record, but it runs on a long clock. Under RCW 9.94A.640, once you finish your sentence and are discharged from supervision, you can petition the court to vacate the conviction. The waiting period runs from your release from confinement or community custody, whichever is later: ten years for a Class B felony, five years for a Class C felony.⁸

Vacation is not guaranteed even after the waiting period. You cannot have pending charges, and you cannot have been convicted of a new crime during the waiting period. Violent offenses are generally ineligible, with narrow exceptions for second-degree assault, third-degree assault not against a law enforcement officer, and second-degree robbery when no firearm, deadly weapon, or sexual motivation enhancement was part of the conviction.

If the court grants the petition, your guilty plea is withdrawn and replaced with a not-guilty plea, or the guilty verdict is set aside, and the charge is dismissed. Court records from the case remain publicly accessible, and prosecutors can still raise a vacated conviction in certain later proceedings. And as noted above, a vacation based on completing a rehabilitative period rather than a legal defect in the original case does not undo the conviction for federal immigration purposes.

1
Washington State Legislature. RCW 9.94A.650 First-Time Offender Waiver
2
Washington State Legislature. RCW 9.94A.030 Definitions
3
Washington Courts. Washington CrR 7.1 Procedures Before Sentencing
4
Washington Law Help. Vacate a Felony Conviction
5
Office of the Law Revision Counsel. 8 USC 1101 Definitions
6
U.S. Citizenship and Immigration Services. Policy Manual Volume 12 Part F Chapter 2 Adjudicative Factors
7
Immigration, Refugees and Citizenship Canada. Overcome Criminal Convictions
8
Washington State Legislature. Washington Code 9.94A.640 Vacation of Offenders Record of Conviction