RCW 9.41.040 requires that a defendant have five years of crime free behavior before the court will grant a firearm restoration. The issue in this case was whether the defendant has to have crime free behavior directly before filing the petition for firearm restoration or whether an earlier period of crime free behavior was sufficient.

In March of 2000, Mr. Payseno was convicted of a felony Violation of the Uniform Controlled Substances Act (VUSCA).  In June of 2000 he was convicted of a Negligent Driving in the First Degree.  Mr. Payseno then went five years without a conviction of any kind.  In 2007 and 2010 he was convicted of DUI and Negligent Driving in the First Degree.  In 2013, Mr.  Payseno petitioned the court to have his firearm rights restored.  He had no charges pending in 2013.  The State objected because it had not been five years since his last conviction. 

The Superior Court construed the language in RCW 9.41.040(4)(a)(ii)(A) that the petitioner not be “currently charged with any felony, gross misdemeanor or misdemeanor crimes” as requiring the petitioner to be crime free for the five-year period preceding the petition even if the subsequent criminal offense was not a disqualifying crime that impacted his firearms right. As a result, the Superior Court denied the petition and Payseno appealed.

The Court of Appeals found that the statute was ambiguous and as a result statutory construction was necessary.

The Court applied the rule of lenity, which provides that, if a criminal statute is ambiguous, we “‘strictly construe’” it in favor of the defendant. Evans, 177 Wash.2d at 193, 298 P.3d 724 (quoting State v. Hornaday, 105 Wash.2d 120, 127, 713 P.2d 71 (1986)); see State v. Villanueva–Gonzalez, 180 Wash.2d 975, 984, 329 P.3d 78 (2014). Washington Courts apply the rule of lenity not only to criminal sanctions, but also to the community custody, probation, and post-conviction context, and to procedural statutes affecting an offender’s rights. State v. Slattum, 173 Wash.App. 640, 658, 295 P.3d 788, review denied, 178 Wash.2d 1010, 308 P.3d 643 (2013); see State v. Parent, 164 Wash.App. 210, 212, 267 P.3d 358 (2011) (applying rule to sentencing).

The Court held that RCW 9.41.040(4)(a)(ii)(A) is ambiguous as applied to the facts of this case. The statute can be interpreted as requiring a petitioner to be crime free for the five-year period immediately preceding the petition or interpreted as requiring a petitioner to be crime free during some earlier five-year period. The legislative history and interpretative aids do not definitively resolve this ambiguity. Under the rule of lenity, the court strictly construed the statute in Payseno’s favor.

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