The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 85790-8-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
KAREN LYNNE FJERSTAD,
Respondent.
HAZELRIGG, C.J. — The State of Washington appeals from an order granting
Karen Fjerstad’s motion for relief under CrR 7.8 and our Supreme Court’s opinion
in State v. Blake. 1 The State avers Fjerstad was not entitled to the return of fees
paid under a preconviction therapeutic court agreement and, more broadly, that
CrR 7.8 does not apply to dismissed charges. We rely on our opinion in a
companion case, State v. Peterson, 2 where we concluded that the trial court lacked
authority to retain and grant such a motion. As such, we reverse.
FACTS
On March 28, 2007, the State charged Karen Fjerstad with one count of
possession of a controlled substance, heroin, under former RCW 69.50.4013(1)
(2003), alleged to have occurred on January 31, 2007. On May 9, 2007, while the
charge was pending, Fjerstad petitioned, with the agreement of the prosecuting
1 197 Wn.2d 170, 481 P.3d 521 (2021).
2 No. 85791-6-I (Wash. Ct. App. Aug. 4, 2025), https://www.courts.wa.gov/opinions/pdf/857916.pdf.
No. 85790-8-I/2
attorney, for admission into the Snohomish County Superior Court CHART
program, 3 which the parties and court also referred to as “drug court.” Fjerstad’s
participation in the CHART program was contingent upon accepting an extensive
set of stipulations and waivers of various constitutional rights, in addition to
payment of a mandatory $600 participation fee. In exchange, the State agreed to
dismiss her charge with prejudice upon her successful completion of the program.
After Fjerstad paid the fee in full, successfully completed her substance use
disorder treatment, and otherwise satisfied the terms of the CHART program, the
State moved to dismiss the charge on August 12, 2008, and the court granted the
motion.
In 2021, our Supreme Court held in State v. Blake, 197 Wn.2d 170, 481
P.3d 521 (2021) that former RCW 69.50.4013 (2017), the state’s strict liability drug
possession statute, was unconstitutional. Following that opinion, Fjerstad filed a
CrR 7.8 motion to vacate her dismissed possession of a controlled substance
charge and to recover the $600 drug court participation fee she had paid. She
argued that, pursuant to Blake, the State lacked authority to charge her with
possession of a controlled substance in 2007, which made the criminal charge void
from inception. She contended that the plain language of Blake required vacatur
of her dismissed drug possession charge.
Fjerstad asserted that she was entitled to relief under CrR 7.8(b), her motion
was timely under RCW 10.73.100(6), and she presented a due process argument
3 None of the documents transmitted in the record on appeal provide a definition or
explanation for the apparent acronym, CHART.
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based on State v. Curtis 4 and Nelson v. Colorado. 5 Her position on Curtis and
Nelson was offered despite expressly acknowledging that the cases involved the
refunds of legal financial obligations (LFOs) after criminal convictions were
overturned, which was distinct from her case. Fjerstad nonetheless averred that
she had an interest in the return of the fees she paid for participation in the CHART
program because she pursued that option only because of the threat of criminal
prosecution under an unconstitutional statute. Fjerstad contended that the State
had no legitimate claim to retain the fees since her only criminal charge in this case
was based on a void statute.
As with other, nearly identical motions filed in other cases of similarly
situated defendants, 6 the State opposed Fjerstad’s motion and argued that CrR
7.8 is not the proper avenue for vacating dismissed charges. It averred that
Fjerstad had voluntarily agreed to participate in drug court and her agreement fell
outside the scope of CrR 7.8. The State further argued that due process claims
under Nelson only apply to fees that resulted from criminal convictions and, since
Fjerstad was never convicted in this case, her due process claim had no merit.
The State conceded that CrR 7.8 is the appropriate vehicle for seeking refunds of
4 No. 36803-3-III (Wash. Ct. App. Nov. 16, 2021) (unpublished), https://www.courts.wa.gov/
opinions/pdf/368033_unp.pdf. Under GR 14.1(c), we may cite to unpublished opinions as
necessary for a well-reasoned opinion. Curtis is included here only because it was offered as
authority by Fjerstad.
5 581 U.S. 128, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017).
6 Fjerstad’s attorney on this matter in the trial court also represented two other similarly
situated Snohomish County drug court graduates and all of their motions were heard in the same
week, two on the same docket. The State appealed from all three orders, which were nearly
identical as they were apparently drafted by defense counsel, and presented similar arguments in
each case. The companion cases are State v. Peterson, No. 85791-6-I and State v. Hunter, No.
85792-4-I.
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Blake-related LFOs under this court’s opinion in Civil Survival Project v. State, 7 but
it insisted that the CHART program fees were not LFOs imposed pursuant to a
criminal conviction and were therefore not subject to CrR 7.8.
The State averred that Fjerstad had already received the remedy of
dismissal upon successful completion of the CHART program and, consequently,
could not make a substantial showing that she was entitled to the remedy of
“vacating” a charge. As such, the State asserted, her motion should be transferred
to the Court of Appeals as a personal restraint petition (PRP). Alternately, it
contended that Fjerstad’s motion should be dismissed and that she could filed a
civil claim for unjust enrichment.
The trial court conducted a hearing on August 8, 2023 and took argument
from both parties before it granted Fjerstad’s motion and entered the following
findings and rulings:
1. The defendant’s motion is properly raised under CrR 7.8
and is hereby granted.
2. The defendant’s motion shall not be transferred to the Court
of Appeals as a Personal Restraint Petition because the defendant’s
motion is not time barred by RCW 10.73.090, and she has made a
substantial showing that she is entitled to relief.
3. The charge of POSSESSION OF A CONTROLLED
SUBSTANCE contained in the Information filed on January 6, 2012,
against the above-named defendant, is constitutionally defective
pursuant to CrR 7.8(2) [sic] and State v. Blake and is hereby vacated;
4. Due process requires that Ms. Fjerstad be refunded the
$600 Drug Court fee previously paid pursuant to the vacated charge.
The State of Washington shall determine the method of any refund
herein with all deliberate speed.
4. [sic] The Clerk of the court shall immediately transmit a
copy of this order vacating the charge 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 charge. The Washington State Patrol and any such local police
7 24 Wn. App. 2d 564, 520 P.3d 1066 (2022), review denied, 2 Wn.3d 1011 (2023).
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agency shall immediately update their records to reflect the vacation
of the charge, and shall transmit the order vacating the charge to the
Federal Bureau of Investigation as required by RCW 9.96.060(7).
The State timely appealed.
ANALYSIS
I. Peterson Controls
This is one of three companion cases that present the question of whether
the trial court may retain and decide a post-Blake CrR 7.8 motion for relief where
the sole charge was one of simple possession of a controlled substance that was
dismissed upon successful completion of a drug court or other therapeutic
diversion program. 8 Like the other similarly situated respondents on appeal,
Fjerstad asserts that the State lacks standing, its appeal is moot, and the trial
court’s order is not appealable. As we held in State v. Peterson, the State has
standing as to the Snohomish County drug court because it has a present,
substantial interest in the funding and operation of therapeutic courts. No. 85791-
6-I, slip op. at 9 n.10. However, the State has not demonstrated that it is authorized
to bring this appeal on behalf of the Washington State Patrol. Id. Also, like the
questions posed in Peterson, the State’s appeal in Fjerstad’s case is not moot both
because we are capable of providing the relief Fjerstad sought in the trial court,
vacatur of a dismissed criminal charge, and it involves a matter of continuing public
8 See State v. Peterson, No. 85791-6-I (Wash. Ct. App. Aug. 4, 2025),
https://www.courts.wa.gov/opinions/pdf/857916.pdf; State v. Hunter, No. 85792-4-I (Wash. Ct.
App. Aug. 4, 2025) (unpublished), https://www.courts.wa.gov/opinions/pdf/857924.pdf.
State v. Hunter is unpublished. Pursuant to GR 14.1(c), this court may discuss unpublished
opinions where necessary for a well-reasoned opinion. Hunter is referenced here to establish the
procedural fact of its decision alongside our published opinion in Peterson and the instant case.
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interest with a likelihood of recurrence such that an exception to the mootness
doctrine also applies. Id. at 5-6 n.6. Further, the trial court’s order entered here,
nearly identical to those under review in Peterson and Hunter, is appealable as it
qualifies as a final decision under RAP 2.2(b)(1). See id. at 6-7.
Consistent with our holding in Peterson, the trial court erred here when it
ordered vacatur of a dismissed criminal charge because that form of relief is simply
not available for nonconviction data as defined by RCW 10.97.030(8). 9 Id. at 10-
12. Signing orders that contain largely the same language as in both Peterson
and Hunter’s cases, 10 the trial court in Fjerstad’s case directed that,
3. The charge of POSSESSION OF A CONTROLLED
SUBSTANCE contained in the Information filed on May 28, 2007,[11]
against the above-named defendant, is constitutionally defective
pursuant to CrR 7.8(2) [sic] and State v. Blake and is hereby vacated;
....
4. The Clerk of the court shall immediately transmit a copy of
this order vacating the charge 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 charge. The Washington State Patrol and any such local police
agency shall immediately update their records to reflect the vacation
of the charge, and shall transmit the order vacating the charge to the
Federal Bureau of Investigation as required by RCW 9.96.060(7).
9 RCW 10.97.030(8) defines nonconviction data as follows:
all criminal history record information relating to an incident which has not led to a
conviction or other disposition adverse to the subject, and for which proceedings
are no longer actively pending. There shall be a rebuttable presumption that
proceedings are no longer actively pending if more than one year has elapsed
since arrest, citation, charge, or service of warrant and no disposition has been
entered.
(Emphasis added.)
10 The defense attorney who represented Fjerstad, Peterson, and Hunter in the trial court
appears to have prepared the final orders signed in each case as they contain the same
typographical errors.
11 This date appears to be a typographical error as the charging instrument in Fjerstad’s
case was filed on March 28, 2007 and she was admitted to the CHART program on May 18, 2007.
It stands to reason that she could not have entered the CHART program on this simple possession
charge prior its filing and, more critically, the order of dismissal correctly notes the filing date as
March 28, 2007.
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This is a plain abuse of discretion as it is a misapplication of the vacatur statute to
nonconviction data, which also implicates the ordering language in paragraph 4 as
similarly improper. See id. at 18. This is true, in part, because the proper means
by which to pursue the removal of nonconviction data is set out in chapter 10.97
RCW. Id.
The trial court’s additional legal conclusion in the first paragraph 4 12
addresses Fjerstad’s claim under Nelson and rules, in relevant part, that “[d]ue
process requires that Ms. Fjerstad be refunded the $600 Drug Court fee previously
paid pursuant to the vacated charge.” We concluded in Peterson that Nelson is
not controlling here because Peterson was never convicted of a crime that was
later reversed and, more critically, the drug court fee she paid was not an LFO
imposed pursuant to a criminal conviction. Id. at 12-13. The same is true for
Fjerstad.
Fjerstad also argues in briefing that “refusing a drug court fee refund” would
“effectuate a Fourteenth Amendment due process violation” and an “Eighth
Amendment excessive fines violation” and “complete the crime of extortion in the
second degree against Fjerstad.” She further avers that she is entitled to
restitution under “basic contract principles of mutual mistake, frustration of
purpose, and violation of public policy.” Because we conclude only that CrR 7.8 is
not the mechanism for a refund after successful completion of drug court on a
12 As with the orders on appeal in the companion cases, Peterson and Hunter, the order in
Fjerstad’s case contains two consecutive paragraphs identified as “4.” The first paragraph 4
contains the ruling on Fjerstad’s due process claim as to the refund of her $600 program fee and
the second paragraph 4, set out in the block quote supra, directs the clerk and law enforcement to
act on the order vacating the criminal charge.
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No. 85790-8-I/8
single count of possession of a controlled substance, and do not decide the
broader question of her entitlement to the return of her therapeutic court fee on the
procedural posture presented here, we need not reach the merits of these
additional arguments.
II. Blake Relief Not Foreclosed
Out of an abundance of caution, we take this opportunity to reiterate the
limitations on our opinions in this case, Peterson, and Hunter. Each is constrained to
the issues presented in briefing as shaped by the approach to the litigation pursued
in the trial court. This opinion, and our published opinion in Peterson on which we rely
here, should not be misconstrued to suggest that Blake relief is not available to others
who, like Fjerstad, chose a path through a therapeutic court solely on a simple
possession charge, rather than exercising their right to trial or to accept a plea offer.
At the risk of redundancy, we take this opportunity to again clearly state, by express
adoption of our analysis of this point in Hunter, that the “policy reasons articulated by
our Supreme Court in Blake as to its intended outcome, to restore those defendants
to the same position prior to their prosecution under an unconstitutional statute, must
apply equally to those who opted to pursue rigorous substance use disorder
treatment, pay participation fees, and comport with conduct requirements and
sanction protocols for long periods of time in order to earn dismissal of their drug
possession charges.” No. 85792-4-I, slip op. at 7 (Wash. Ct. App. Aug. 4, 2025)
(unpublished), https://www.courts.wa.gov/opinions/pdf/857924.pdf. The State
argued in the trial court and on appeal that other avenues for relief may be a more
appropriate path under our statutes, such as civil claims or pursuit of a PRP upon
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demonstration of the nonconviction data or payment of participation fees as forms
of restraint. As we may only resolve this case based on the procedural posture by
which it comes to us, we hold that CrR 7.8 motions are not the proper mechanism
for the relief Fjerstad sought.
Reversed.
WE CONCUR:
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