Restoration of Rights, Pardon, Expungement & Sealing
Last updated: June 2, 2017
I. Restoration of Civil/Firearms Rights
Article VI, Section 3 of the Washington State Constitution provides that “[a]ll persons convicted of an infamous crime … are excluded from the elective franchise.” “Infamous crimes” are defined as those “punishable by death in the state penitentiary or imprisonment in a state correctional facility,” Wash. Rev. Code § 29A.04.079, and have historically included only felonies. See State v. Collins, 124 P. 903 (Wa. 1912). The right to vote is restored through discharge issued by the sentencing court under § 94A.637, by a court order restoring the right issued pursuant to § 9.92.066, or by a certificate of restoration issued by the governor, as provided in § 9.96.020. An offender who cannot pay his fine may petition the court for remission of all or part of the court fees and costs based upon “manifest hardship.” § 10.73.160(4). Alternatively, he may petition the governor to restore his civil rights or for pardon. See United States v. Loucks, 149 F.3d 1048, 1050 (9th Cir. 1998).
In July 2009, the right to vote was “provisionally” restored to all Washington State offenders who are not “under the authority of the department of corrections.” See 2009 Wash. Legis. Serv. Ch. 325 (H.B. 1517), amending Wash. Rev. Code § 29A.08.520. See also § 9.94A.637 (5) (discharge under this section has “the effect of restoring all civil rights not already restored by RCW 29A.08.520.”).1 A person is deemed to be “under the authority of the department of corrections” if the person is either serving a sentence of confinement in the custody of the department of corrections, or is “subject to community custody as defined in [Wash Rev. Code §] 9.94A.030.” § 29A.08.520(7).2 Upon motion by the prosecutor, the “provisional” restoration of voting rights may be revoked by the sentencing court if the recipient has “willfully failed to comply with the terms of his or her order to pay legal financial obligations.” The prosecutor “shall” make such a motion if the recipient or the county clerk requests, and the payor has failed to make three payments within a 12-month period. The revocation shall remain active until the payor files a motion to do so and shows that he or she has made a good faith effort to pay. §§ 29A.08.520(2) and (3). Under § 29A.08.520(6), the right to vote is permanently restored only by
(a) A certificate of discharge issued by the sentencing court, as provided in RCW 9.94A.637; (b) A court order restoring the right, as provided in RCW 9.92.066; (c) A final order of discharge issued by the indeterminate sentence review board, as provided in RCW 9.96.050; or d) A certificate of restoration issued by the governor, as provided in RCW 9.96.020.
The 2009 law also provides that a person with an out-of-state or federal conviction may register to vote “as long as the person is no longer incarcerated,” without condition. § 29A.08.520(1).3
B. Office, Jury
Persons who are not “electors” (i.e., eligible to vote, see State ex rel. Hubbard v. Lindsay, 52 Wn.2d 397, 403, 329 P.2d 47 (Wash. 1958)) are not “competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision.” Wash. Rev. Code § 42.04.020. A person may not serve as a juror if he “has been convicted of a felony and has not had his or her civil rights restored.” § 2.36.070(5). A certificate of discharge restores this right. See § 9.94A.637(5). Alternatively, offenders may seek restoration of these rights from the State Clemency and Pardons Board. See § 9.94A.885(2) (enabling Board to restore right to engage in political office without action by Governor).
Persons convicted of “any serious offense” cannot possess a firearm or obtain a license to carry a concealed pistol. Wash. Rev. Code §§ 9.41.040(1)(a), (2)(a)(i), 941.070(1)(a). A “serious offense” is defined in § 9.41.010(16) to include violent, drug, and sex offenses. A person has been “convicted”, whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed, even if charges are later dismissed after a period of probation, suspension or deferral of sentence, in Washington or another state. However, a person sentenced to probation for certain less serious offenses does not lose firearms rights. § 9.41.040(4)(a).
Relief is available through pardon, as provided under § 9.41.040(3), or from a court under § 9.41.040(4). Thus,
A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Where no record of the court’s disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge.
§ 9.414.040(3).4 Under § 9.41.040(4), relief is available from either the sentencing court or the court in the county of the petitioner’s residence, after five years for a felony offense and after three years for a misdemeanor offense. See discussion in Part II.
A court is required to notify a defendant orally and in writing that the person may not possess a firearm unless a court of record restores his right to do so. Wash. Rev. Code § 9.41.047(1). Failure to do so is grounds for vacating a subsequent conviction for possessing a firearm after a felony conviction if the defendant lacked actual knowledge of the prohibition. State v. Breitung, 155 Wn. App. 606 (Wash. App. 2010). Where a defendant can demonstrate actual prejudice arising from a sentencing court’s failure to comply with the mandate in § 9.41.047 to advise him about the statutory firearm-possession prohibition, the statute cannot serve as the basis for convicting the defendant of unlawful firearm possession. State v. Leavitt, 107 Wn. App. 361, 27 P.3d 622 (2001).
II. Discretionary Restoration Mechanisms
A. Executive pardon
Pardon power is vested in the governor, “under such regulations and restrictions as may be prescribed by law.” Wash. Const. art III, § 9. The governor must report to the legislature every session on “each case of reprieve, commutation or pardon granted, and the reasons for granting the same . . . .” Wash. Const. art III, § 11. The governor may (but is not required to) rely on the recommendation from State Clemency and Pardons Board. Wash. Rev. Code §§ 9.94A.885, 10.01.120. The governor may also grant restoration of rights without a pardon when a sentence has expired or is about to expire, which has the effect of discharging unpaid portion of fine, or grant a pardon without restoring rights. Id. §§ 9.96.010, 9.96.020.
The State Clemency and Pardons Board is composed of five members appointed by the governor to four-year terms, subject to confirmation by the Senate. They receive no compensation, and staff is provided by the Attorney General’s office. The Board elects its own chairman from among its members. The Board’s home page is at http://www.governor.wa.gov/office/clemency/. Its policies are set forth at http://www.governor.wa.gov/office/clemency/documents/policies.pdf.
Pardon has the effect of vacating conviction. Wash. Rev. Code § 9.94A.030(11)(b) (“A conviction may be removed from a defendant’s criminal history only if it is vacated pursuant to [Wash Rev. Code §§] 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor’s pardon.”); see also 1967 Wash. Att’y Gen. Op. No. 6. Vacatur relieves all legal disabilities, and a conviction that has been vacated need not be reported, and may not be counted as part of criminal history. See § 9.94A.640 (1), (3) discussed infra.5
No requirements. Federal and out-of-state offenders are ineligible to apply for a pardon, but may apply to Board for restoration of rights.
A petition must be filed with Clemency and Pardons Board, which cannot recommend clemency until a public hearing has been held on the petition. A hearing is held in about one third of cases. Application form and instructions are available at http://www.governor.wa.gov/office/clemency/petition.aspx. In addition to factual information relating to the crime and the applicant’s circumstances, the application asks for an explanation of the offense, a description of the “extraordinary” circumstances that would “justify” granting a pardon, and an account of the applicant’s rehabilitative efforts. The application form itself is at http://www.governor.wa.gov/office/clemency/documents/petition_A.doc. The applicant must attach a copy of the judgment and sentence. The prosecuting attorney of the county where the conviction was obtained must be notified at least thirty days prior to the scheduled hearing, and the prosecuting attorney shall make reasonable efforts to notify victims, survivors of victims, witnesses, and the law enforcement agency or agencies that conducted the investigation, of the date and place of the hearing. Wash. Rev. Code § 9.94A.885(3).
Restoration of Rights
The Board has been delegated authority from the Governor to grant restorations of rights pursuant to Wash. Rev. Code § 9.94A.885. It holds several dozen hearings each year, and grants most applications. Federal and out-of-state offenders may apply to Board for restoration of rights but not for pardon.
Frequency of Grants
About 35 petitions for pardon, commutation and restoration of rights are received each quarter, 8-10 of which go to hearing before the Board. Governor Inslee has granted no pardons since taking office. From 2006 through January 2011, Governor Gregoire granted 33 pardons in eight years in office, two of which were conditional, and two to avoid deportation. She also granted several sentence commutations. Governor Locke issued 45 pardons and eight commutations in his four years in office, more than half of them in his final year in office. Source: Office of the Governor.
Washington State Clemency and Pardons Board, c/o Jean Meyn, Office of the Attorney General, PO Box 40116, Olympia, WA 98504-0116, (360) 586-1445, (360) 586-0047.
B. Judicial sealing or expungement
1. Vacating records of certain misdemeanor & felony convictions
Under Washington’s Sentencing Reform Act of 1981, as amended in 2012,
Every offender who has been [discharged from sentence] may apply to the sentencing court for a vacation of the offender’s record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender’s plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.
Wash. Rev Code § 9.94A.640(1).
Under § 9.94A.640(2), an offender is ineligible to have the record of conviction “cleared” if he has been convicted of a new crime, if there are any charges pending against him, or if the offense was a violent offense or crime against a person (including domestic violence). Class A felonies (violent offenses and crimes against the person) are ineligible for vacatur, as are certain Class C felony repeat juvenile DUI offenses. All other felonies (C and B) must wait ten years after the date of discharge, with no new crimes intervening.
Vacatur of misdemeanors
Vacatur is available for misdemeanor offenses under Wash. Rev Code § 9.96.060, with certain exceptions for violent or sex crimes, on much the same terms and to the same degree as for felony offenses under § 9.94A.640 (above). A waiting period of three to five years follows discharge, depending on the crime.
Vacatur of deferred probationary sentences
After conviction of “any crime,” the court may suspend or defer sentence, and place defendant on probation. Wash. Rev. Code §§ 3.66.067; 9.95.200. After successful completion or early discharge from probation, the defendant may apply to the sentencing court for a vacatur of the defendant’s record of conviction under § 9.94A.640. See § 9.95.240.
Effect of vacatur
A conviction that has been vacated under Wash. Rev. Code § 9.94A.640 may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies. After it is vacated, the prior conviction may not be included in an offender’s criminal history for purposes of enhancing a subsequent sentence:
Once the court vacates a record of conviction . . . the fact that the offender has been convicted of the offense shall not be included in the offender’s criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender’s prior conviction in a later criminal prosecution.
§ 9.94A.640 (3).6
Vacated convictions may be sealed by the court pursuant to General Rule 15 of the Washington Courts, if the court makes certain findings:
After [a] hearing, the court may order the court files and records in the proceeding, or any part thereof, to be sealed or redacted if the court makes and enters written findings that the specific sealing or redaction is justified by identified compelling privacy or safety concerns that outweigh the public interest in access to the court record.
The Washington Supreme Court has interpreted the statutes providing for vacation to authorize courts to order sealing of records held by state police. See State v. Breazeale, 31 P.3d 1155 (Wash. 2001). Vacatur of a conviction does not relieve the federal immigration consequences of a conviction. See State v. Cervantes, 282 P.3d 98, 100 (Wash. App. 2012).
2. Firearms Restoration
Vacatur of sentence does not restore firearms rights, 1988 Wash. Att’y Gen. Op. No. 10. Individuals who have not been previously convicted of a crime prohibiting gun possession, other than Class A felony offenders and sex offenders, may petition the court for restoration of firearms rights under Wash. Rev. Code § 41.040(4); see also State v. Hunter, 147 Wn. App. 177 (2008) (while court has no discretion to deny restoration to otherwise eligible offender, court has no additional authority to restore rights based on juvenile status at time of sex offense; restrictions on restoration extend to convictions occurring after initial loss of right). Felony offenders must wait five years without conviction or pending charges, misdemeanants must wait three years. No additional showing is necessary — if the individual meets the requirements, the court has only a ministerial function in granting the petition. State v. Swanson, 116 Wn. App. 67, review denied, 150 Wn.2d 1006 (2003) (holding that court could not require misdemeanant to show he no longer presented a substantial danger). Where the record of juvenile convictions has been expunged, no basis exists for precluding possession of a firearm. Nelson v. State (In re Firearm Rights), 120 Wn. App. 470 (2003). If a person is convicted of a crime for which § 9.41.040 prescribes no procedure for the restoration of firearm rights, the only available remedy is a pardon by the governor with a finding either of innocence or of rehabilitation. See § 9.41.040(3); 2002 Op. Atty Gen. Wash. No. 4. A court has no authority to order relief under this section. See State v. Masangkay, 91 P.3d 140, 141 (Wash. Ct. App. 2004).
3. Juvenile Records
Effective 2015, juvenile courts are required to schedule, at the time of disposition, a hearing to administratively seal the record of adjudication, which is to be held after the individual reaches age 18 (or after the individual has been discharged from confinement or supervision, if it extends beyond age 18). See Wash. Rev. Code § 13.50.260(1). If all of the terms and conditions of disposition are satisfied then sealing is mandatory unless the state objects or the court finds “a compelling reason not to seal” — in which case a contested hearing is held. If a contested hearing is held the court must order sealing unless “the court determines that sealing is not appropriate.” The subject of the record need to present at any hearing. Serious offenses, sex offenses, and most felony drug offenses are ineligible.
Individuals whose records have not been sealed pursuant to the authority described above may still petition for sealing if there are (1) no pending adult or juvenile criminal charges; (2) no pending diversions; (3) restitution has been paid; (4) the individual has remained crime free for either two or five years since the date of disposition or release from confinement, depending on the seriousness of the crime; and (5) the person is no longer required to register as a sex offender (and has not been convicted of certain sex offenses, if the subject of sealing is a Class A offense). § 13.50.260(4). Sealing is mandatory if the above eligibility requirements are met.
Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
§ 13.50.260(6)(a). A subsequent juvenile adjudication, adult conviction, or adult felony charge will nullify the sealing order, § 13.50.260(8)(a).
4. Non-conviction records
Non-conviction records in criminal justice agency files may be sealed administratively two years after disposition favorable to the defendant. Criminal Records Privacy Act, Wash. Rev. Code § 10.97.060. The court has no jurisdiction to seal non-conviction records. See State v. Shineman, 94 Wash. App. 57 (1999). Agencies may refuse to delete records of deferred prosecutions (though in that case the court may still vacate the record of the conviction, as described above).
5. Summary of Judicial Restoration Provisions
A comprehensive summary of the various judicial sealing and relief authorities under state law has been prepared by the Washington courts, and is available at http://www.courts.wa.gov/newsinfo/index.cfm?fa=newsinfo.displayContent&theFile=content/guideToCrimHistoryRecords.
C. Judicial certificate – Certificate of Restoration of Opportunity
Effective June 9, 2016, courts are authorized to grant a Certificate of Restoration of Opportunity (CROP) that prohibits many licensing entities from disqualifying an applicant solely based on criminal history. A CROP also protects employers and housing providers from negligent hiring/renting liability. See HB-1553 (signed on March 31, 2016, to be codified in 9 RCW).
Individuals are eligible to apply for a CROP if they have been convicted of a misdemeanor, gross misdemeanor, and certain less serious felonies (or adjudicated in juvenile court for equivalent offenses). In order to qualify, a person must be “in compliance with or have completed all sentencing requirements imposed by a court,” must have no pending charges, and must not have been arrested for or convicted of a new crime. HB-1553 § 2(1)(b), (d) (2016). Persons convicted at any time of a Class A felony, certain sex offenses, extortion, drive-by shooting, vehicular assault, or luring are ineligible, as are registered sex offenders. § 2(1)(c). Waiting periods apply and depend on the offense and sentence:
- 1 year from sentencing – misdemeanor/gross misdemeanor (probation/noncustodial sentence)
- 18 months from release – misdemeanor/gross misdemeanor (sentence of confinement)
- 2 years from sentencing (probation/noncustodial sentence) or release (sentence of confinement) – Class B/C felony
- 5 years from sentencing (probation/noncustodial sentence) or release (sentence of confinement) – violent offense under Wash. Rev. Code § 9.94A.030
With a number of exceptions, “no state, county, or municipal department, board, officer, or agency . . . may disqualify a qualified applicant, solely based on the applicant’s criminal history, if the qualified applicant has obtained a [CROP]….” HB-1553 § 3(1) (2016). Excepted professions for which a CROP does not limit the ability of an entity to disqualify an applicant include: accountants, assisted living facility employees, nurses and physicians, private investigators, teachers, security guards, vulnerable adult care providers, and law enforcement. § 3(1)(a) – (d). For otherwise unspecified professions and businesses that involve unsupervised contact with vulnerable adults, children, or disabled individuals, a licensing entity may only disqualify an applicant based solely upon criminal history after reviewing “relevant factors, including the nature and seriousness of the offense, time that has passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or license sought.” § (3)(b), (c).
Employers and housing providers are not required to consider a CROP in making hiring or rental decisions. § 3(3). However, if an employers/provider does consider a CROP, then evidence of the employee/renter’s crimes may not be entered into evidence in any action against the employer/provider for negligent or intentionally tortious conduct. Id.
CROP grants are transmitted to the Washington state patrol identification section, which must update its criminal history records to reflect the CROP. § 3(9). A CROP has no other effect on court or law enforcement records. § 3(1)(c).
Procedure & criteria
Applications may be filed either with the sentencing court or the superior court in the applicant’s county of residence. HB-1553 § 2(2) (2016). If filed in the county of residence, the court may decline to consider the application, and it must dismiss the application if the person does not meet the eligibility standards. § 3(7). In either case, dismissal in the county of residence is without prejudice, and the application may be refiled with the sentencing court, which must consider the application. Id. Applicants must give notice to the prosecutor in the county where the certificate is sought and to the prosecutors in any county where a person has been sentenced in the last 5 years. § 3(5).
Notwithstanding the exception for dismissal in the court of the county of residence, the court must grant a certificate if the applicant meets the eligibility criteria described above. § 3(2)(c). However, the court has discretion to determine whether the certificate applies to all past criminal history or only the convictions in the court’s jurisdiction. § 3(2)(a). A hearing on the application is not required. § 3(8).
III. Nondiscrimination in Licensing and Employment
Washington law on “Restoration of Employment Rights” (1973) sets forth the state’s policy:
[I]t is the policy of the state of Washington to encourage and contribute to the rehabilitation of felons and to assist them in the assumption of the responsibilities of citizenship, and the opportunity to secure employment or to pursue, practice or engage in a meaningful and profitable trade, occupation, vocation, profession or business is an essential ingredient to rehabilitation and the assumption of the responsibilities of citizenship.
Wash. Rev. Code § 9.96A.010. Most public employers and licensing agencies may not disqualify from employment or licensure solely because of conviction, and may consider a conviction only if 1) the conviction occurred within the last ten years; and 2) the crime “directly relates” to the employment or license sought. § 9.96A.020(1)-(2). Several additional important enumerated exceptions exist. Vulnerable adults and children are protected by restrictions against employment of offenders who have committed “crimes against persons” and “crimes of financial exploitation” by nursing homes, adult family homes, and child care facilities operated by the department of health and social services. §§ 9.96A.060(3), 43.43.842. Another provision exempts all licenses granted to practice any profession subject to the Regulation of Health Professions – Uniform Disciplinary Act. § 9.96A.020 (5) (exempting all professions governed by Wash. Rev. Code § 18.130). Individuals convicted of fraud may be barred from employment in county treasurer’s office, § 9.96A.020 (2); Sex offenders may be barred from many positions in education, including teaching, even if more than 10 years have passed since conviction. § 9.96A.020 (4). School districts are required to conduct records checks of all employees, as is the Department of Social and Health Services. § 28A.400.303. Law enforcement agencies do not have to comply with standards governing other public employees. § 9.96A.030.
See Part II-C, above, regarding the effect of Certificates of Restoration of Opportunity on licensing decisions and employer negligent hiring liability.
- Prior to July 2009, § 29A.08.520 provided that the right to vote was restored to felony offenders only after they had satisfied all requirements of their sentence, including all financial obligations, and obtained a certificate of discharge from the sentencing court. (For pre-1984 offenses that involved a prison sentence, and certain sex offenses committed after 2001, certificate of discharge must be obtained from the Indeterminate Sentence Review Board.) The affirmative obligation to apply to the court for discharge and to pay all financial obligations made restoration of voting rights more onerous than analogous provisions of other states, where outstanding financial obligations were either waived or ignored. See Jill Simmons, Note & Comment, Beggars Can’t be Voters: Why Washington’s Felon Re-enfranchisement Law Violates the Equal Protection Clause, 78 Wash. L. Rev. 297, 305-07 (2003). The requirement that an offender pay all outstanding financial obligations before being permitted to vote was upheld by the Washington Supreme Court in Madison v. State, 163 P. 3d 757 (Wash, 2007). In 2010, the en banc 9th Circuit rejected a challenge to the Washington scheme under the Voting Rights Act, holding that plaintiffs had presented no evidence of intentional discrimination in Washington’s criminal justice system, or in the adoption of the disenfranchisement provisions. Farrakhan v. Gregoire, 623 F. 3d 990 (9th Cir. 2010) (en banc).
- “Community custody” is defined in Wash. Rev. Code § 9.94A.030(5) as “that portion of an offender’s sentence of confinement in lieu of earned release time or imposed as part of a sentence under this chapter and served in the community subject to controls placed on the offender’s movement and activities by the department.” See Washington State Sentencing Guidelines Commission Adult Sentencing Manual, 2009 supplement, at 12 (“A Summary of Community Custody Changes as a Result of ESSB 5288 and SSB 6162”), available at http://www.sgc.wa.gov/PUBS/Adult_Manual/AdultSentencingManualSupplement2009.pdf. According to the Office of the Secretary of State, persons sentenced to a jail term followed by a term of community supervision are “subject to community custody” and may not vote until discharged. On the other hand, offenders sentenced to a suspended sentence without community custody, or to a jail term only, may vote provisionally as soon as they are sentenced.
- Prior to 2009, persons convicted in federal court in Washington State were able to regain their right to vote only by petitioning the Washington State Clemency and Pardons Board for an order restoring their right to vote. For persons convicted in another state, including federal offenders, their right to vote depended upon the law of the jurisdiction of conviction, except that if their right to vote was not restored under the laws of the state of conviction they too could petition the Clemency and Pardons Board for an order restoring their right to vote.
- Section 9.41.040(3) provides that possession of a firearm is not prohibited for someone who has a “certificate of rehabilitation.” This term is not defined, however, and Washington courts have been held to have no authority to issue such certificates. See State v. Masangkay, 91 P.3d 140, 141 (Wash. Ct. App. 2004) (holding that the “certificate of rehabilitation” provision cannot reasonably be interpreted as authorization for Washington courts to issue certificates of rehabilitation). On the other hand, the Supreme Court of Washington gave effect to an out-of-state restoration provision, holding that an early discharge from supervision in Montana, combined with Montana’s automatic firearms restoration provision, was sufficient to satisfy the “other equivalent procedure” provision in § 9.41.040(3). See, e.g., State v. Radan, 143 Wn.2d 323, 21 P.3d 255 (Wa. 2001).
- Statute reverses effect given pardon by state courts. State v. Edelstein, 146 Wash. 221, 262 P. 622 (Wash. 1927) (prior conviction, though pardoned, is to be counted in determining sentence under multiple offender laws).
- By contrast, vacated convictions for felonies committed before 1984 may be considered for sentence enhancement purposes. See State v. Moore, 75 Wn. App. 166, 876 P.2d 959 (Wash. Ct. App. 1994).