How Do You Have Your Criminal Record Expunged?
Full Question:
Answer:
Expungement is the removal and destruction or sealing of records related to a conviction. Expungement may be ordered by the court after a petition for expungement is made by an eligible person. Please see the statutes below for applicability.
The following is an OR statute governing the expungement of adult criminal records:
137.225 Order setting aside conviction or record of arrest; fees;
prerequisites; limitations.
(1)
(a) At any time after the lapse of three years from the date of
pronouncement of judgment, any defendant who has fully complied with and
performed the sentence of the court and whose conviction is described in
subsection (5) of this section by motion may apply to the court where
the conviction was entered for entry of an order setting aside the
conviction; or
(b) At any time after the lapse of one year from the date of any
arrest, if no accusatory instrument was filed, or at any time after an
acquittal or a dismissal of the charge, the arrested person may apply to
the court that would have jurisdiction over the crime for which the
person was arrested, for entry of an order setting aside the record of
the arrest. For the purpose of computing the one-year period, time
during which the arrested person has secreted himself or herself within
or without the state is not included.
(2)
(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting attorney
who prosecuted the crime or violation, or who had authority to prosecute
the charge if there was no accusatory instrument filed, and opportunity
shall be given to contest the motion. The fingerprint card with the
notation "motion for setting aside conviction," or "motion for setting
aside arrest record" as the case may be, shall be forwarded to the
Department of State Police bureau of criminal identification.
Information resulting from the fingerprint search along with the
fingerprint card shall be returned to the prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a motion to
set aside a conviction under this section, the prosecuting attorney
shall provide a copy of the motion and notice of the hearing date to the
victim, if any, of the crime by mailing a copy of the motion and notice
to the victim's last-known address.
(c) When a person makes a motion under subsection (1)(a) of this
section, the person must pay a fee of $80. The person shall attach a
certified check payable to the Department of State Police in the amount
of $80 to the fingerprint card that is served upon the prosecuting
attorney. The office of the prosecuting attorney shall forward the check
with the fingerprint card to the Department of State Police bureau of
criminal identification.
(3) Upon hearing the motion, the court may require the filing of such
affidavits and may require the taking of such proofs as it deems proper.
The court shall allow the victim to make a statement at the hearing.
Except as otherwise provided in subsection (11) of this section, if the
court determines that the circumstances and behavior of the applicant
from the date of conviction, or from the date of arrest as the case may
be, to the date of the hearing on the motion warrant setting aside the
conviction, or the arrest record as the case may be, it shall enter an
appropriate order that shall state the original arrest charge and the
conviction charge, if any and if different from the original, date of
charge, submitting agency and disposition. The order shall further state
that positive identification has been established by the bureau and
further identified as to state bureau number or submitting agency
number. Upon the entry of the order, the applicant for purposes of the
law shall be deemed not to have been previously convicted, or arrested
as the case may be, and the court shall issue an order sealing the
record of conviction and other official records in the case, including
the records of arrest whether or not the arrest resulted in a further
criminal proceeding.
(4) The clerk of the court shall forward a certified copy of the order
to such agencies as directed by the court. A certified copy must be sent
to the Department of Corrections when the person has been in the custody
of the Department of Corrections. Upon entry of the order, the
conviction, arrest or other proceeding shall be deemed not to have
occurred, and the applicant may answer accordingly any questions
relating to its occurrence.
(5) The provisions of subsection (1)(a) of this section apply to a
conviction of:
(a) A Class C felony, except for criminal mistreatment in the first
degree under ORS 163.205 when it would constitute child abuse, as
defined in ORS 419B.005, or any sex crime.
(b) The crime of possession of the narcotic drug marijuana when that
crime was punishable as a felony only.
(c) A crime punishable as either a felony or a misdemeanor, in the
discretion of the court, except for:
(A) Any sex crime; and
(B) The following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS 163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575(1)(a).
(d) A misdemeanor, including a violation of a municipal ordinance, for
which a jail sentence may be imposed, except for endangering the welfare
of a minor under ORS 163.575(1)(a) when it would constitute child
abuse, as defined in ORS 419B.005, or any sex crime.
(e) A violation, whether under state law or local ordinance.
(f) An offense committed before January 1, 1972, that if committed
after that date would be:
(A) A Class C felony, except for any sex crime or for the following
crimes when they would constitute child abuse as defined in
ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS 163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575(1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in the
discretion of the court, except for any sex crime or for the following
crimes when they would constitute child abuse as defined in
ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS 163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575(1)(a).
(C) A misdemeanor, except for endangering the welfare of a minor under
ORS 163.575(1)(a) when it would constitute child abuse, as defined in
ORS 419B.005, or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the provisions of
subsection (1) of this section do not apply to:
(a) A person convicted of, or arrested for, a state or municipal
traffic offense.
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of this
section, of any other offense, excluding motor vehicle violations,
whether or not the other conviction is for conduct associated with the
same criminal episode that caused the arrest or conviction that is
sought to be set aside. Notwithstanding subsection (1) of this section,
a conviction that has been set aside under this section shall be
considered for the purpose of determining whether this paragraph is
applicable.
(c) A person who at the time the motion authorized by subsection (1)
of this section is pending before the court is under charge of
commission of any crime.
(7) The provisions of subsection (1Kb) of this section do not apply to
a person arrested within the three-year period immediately preceding the
filing of the motion for any offense, excluding motor vehicle
violations, and excluding arrests for conduct associated with the same
criminal episode that caused the arrest that is sought to be set aside.
(8) The provisions of subsection (1) of this section apply to
convictions and arrests that occurred before, as well as those that
occurred after, September 9, 1971. There is no time limit for making an
application.
(9) For purposes of any civil action in which truth is an element of a
claim for relief or affirmative defense, the provisions of
subsection (3) of this section providing that the conviction, arrest or
other proceeding be deemed not to have occurred do not apply and a party
may apply to the court for an order requiring disclosure of the official
records in the case as may be necessary in the interest of justice.
(10) Upon motion of any prosecutor or defendant in a case involving
records sealed under this section, supported by affidavit showing good
cause, the court with jurisdiction may order the reopening and
disclosure of any records sealed under this section for the limited
purpose of assisting the investigation of the movant. However, such an
order has no other effect on the orders setting aside the conviction or
the arrest record.
(11) Unless the court makes written findings by clear and convincing
evidence that granting the motion would not be in the best interests of
justice, the court shall grant the motion and enter an order as provided
in subsection (3) of this section if the defendant has been convicted of
one of the following crimes and is otherwise eligible for relief under
this section:
(a) Abandonment of a child, ORS 163.535.
(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim was at least 18 years of age.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
(j) Criminally negligent homicide, ORS 163.145.
.(k) Attempted robbery in the second degree, ORS 164.405
(L) Robbery in the third degree, ORS 164.395.
(m) Supplying contraband, ORS 162.185.
(n) Unlawful use of a weapon, ORS 166.220.
(12) As used in this section, "sex crime" has the meaning given that
term in ORS 181.594.
The following is an OR statute governing expungement of juvenile records:
419A.262 Expunction proceeding; notice to victim; effect of expunction;
confidentiality; penalties.
(1) An expunction proceeding shall be commenced in the county where the
subject person resided at the time of the most recent termination.
(2) Upon application of either a person who is the subject of a record or
a juvenile department, or upon its own motion, the juvenile court shall
order expunction if, after a hearing when the matter is contested, it finds
that:
(a) At least five years have elapsed since the date of the person's most
recent termination;
(b) Since the date of the most recent termination, the person has not
been convicted of a felony or a Class A misdemeanor;
(c) No proceedings seeking a criminal conviction or an adjudication in a
juvenile court are pending against the person;
(d) The person is not within the jurisdiction of any juvenile court on
the basis of a petition alleging an act or behavior as defined in ORS
419B.100(1)(a) to (c) and (f) or 419C.005; and
(e) The juvenile department is not aware of any pending investigation of
the conduct of the person by any law enforcement agency.
(3) In the case of an application by the juvenile department or of the
court acting upon its own motion, expunction shall not be ordered if actual
notice of expunction has not been given to the person in accordance with
subsection (10) of this section unless the person has reached 21 years of
age.
(4) When a person who is the subject of a record kept by a juvenile court
or juvenile department reaches 18 years of age, the juvenile court, after a
hearing when the matter is contested, shall order expunction if:
(a) The person never has been found to be within the jurisdiction of the
court; or
(b) The conditions of subsection (2) of this section have been met.
(5) Expunction shall not be ordered under this section if actual notice
of expunction has not been given to the person in accordance with
subsection (10) of this section unless the person has reached 21 years of
age.
(6) Subsections (4) and (5) of this section apply only to cases resulting
in termination after September 13, 1975.
(7) Notwithstanding subsections (2) and (4) to (6) of this section, upon
application of a person who is the subject of a record kept by a juvenile
court or juvenile department, upon application of the juvenile department,
or upon its own motion, the juvenile court, after a hearing when the matter
is contested, may order expunction of all or any part of the person's
record if it finds that to do so would be in the best interests of the
person and the public. In the case of an application by the juvenile
department or of the court acting upon its own motion, expunction shall not
be ordered if actual notice of expunction has not been given to the person
in accordance with subsection (10) of this section unless the person has
reached 21 years of age.
(8) When an expunction proceeding is commenced by application of the
person whose records are to be expunged, the person shall set forth as
part of the application the names of the juvenile courts, juvenile departments,
institutions and law enforcement and other agencies that the person has
reason to believe possess an expungible record of the person. The juvenile
department shall provide the names and addresses of the juvenile courts,
juvenile departments, institutions and law enforcement and other agencies
that a reasonable search of department files indicates have expungible
records.
(9) When an expunction proceeding is commenced by application of the
juvenile department or upon the court's own motion, the application or
motion shall set forth the names and addresses of the juvenile courts,
juvenile departments, institutions and law enforcement and other agencies
that a reasonable search of department files indicates have expungible
records and those provided by the subject person.
(10)
(a) Notice and a copy of an application for expunction under
subsections (2) to (7) of this section shall be given to:
(A) The district attorney of the county in which the expunction
proceeding is commenced and the district attorney of each county in which
the record sought to be expunged is kept; and
(B) The person who is the subject of the record if the person has not
initiated the expunction proceeding.
(b) A district attorney who receives notice under this subsection shall
notify the victim of the acts that resulted in the disposition that is the
subject of the application for expunction and shall mail a copy of the
application for expunction to the victim's last known address.
(11) Within 30 days of receiving the notice of application for expunction
under subsection (10) of this section, a district attorney shall give
written notice of any objection and the grounds therefor to the person
whose records are to be expunged and to the juvenile court. If no objection
is filed the court may decide the issue of expunction either without a
hearing or after full hearing pursuant to subsections (12) to (15) of this
section.
(12) When an expunction is pending pursuant to subsections (2) to (7) of
this section, the court may proceed with or without a hearing, except that:
(a) The court may not enter an expunction judgment without a hearing if a
timely objection to expunction has been filed pursuant to subsection (11)
of this section; and
(b) The court may not deny an expunction without a hearing if the
proceeding is based on an application of the subject.
(13)
(a) Notice of a hearing on a pending expunction shall be served on
the subject and any district attorney filing a timely objection pursuant to
subsection (11) of this section.
(b) When a district attorney receives notice of a hearing for expunction
of a record concerning a youth or youth offender proceeding under ORS
chapter 419C, if the victim of the acts that resulted in the disposition
that is the subject of the application for expunction requests, the
district attorney shall mail notice of the hearing to the victim's
last-known address.
(14) The court shall conduct a hearing on a pending expunction in accord
with the provisions of ORS 419B.195, 419B.198, 419B.201, 419B.205,
419B.208, 419B.310, 419B.812 to 419B.839 and 419B.908. Rules of evidence
shall be as in a hearing to establish juvenile court jurisdiction and as
defined in ORS 419B.310(3) and 419C.400(2). The burden of proof shall be
with the party contesting expunction.
(15) At the conclusion of a hearing on a pending expunction, the court
shall issue judgment granting or denying expunction.
(16) The juvenile court or juvenile department shall send a copy of an
expunction judgment to each agency subject to the judgment. Upon receipt of
a copy of the judgment, the agency shall comply and, within 21 days of the
date of receipt, return the copy to the juvenile court or juvenile
department with an indorsement indicating compliance.
(17) When all agencies subject to an expunction judgment have indicated
their compliance or in any event no later than six weeks following the date
the judgment was delivered as required by subsection (16) of this section,
the juvenile court shall provide the person who is the subject of the
record with a copy of the expunction judgment, a list of complying and
noncomplying agencies, and a written notice of rights and effects of
expunction. The juvenile court and juvenile department then shall expunge
forthwith all records which they possess and which are subject to the
judgment, except the original expunction judgment and the list of complying
and noncomplying agencies which must be preserved under seal.
(18) In addition to those agencies identified in ORS 419A.260(1)(d), the
juvenile, circuit, municipal and justice courts, and the district and city
attorneys of this state, are bound by an expunction judgment of any
juvenile court of appropriate jurisdiction in this state issuing an
expunction judgment.
(19) Upon entry of an expunction judgment, the contact that is the
subject of the expunged record shall not be disclosed by any agency. An
agency that is subject to an expunction judgment shall respond to any
inquiry about the contact by indicating that no record or reference
concerning the contact exists.
(20) A person who is the subject of a record that has been expunged under
this section may assert that the record never existed and that the contact,
which was the subject of the record, never occurred without incurring a
penalty for perjury or false swearing under the laws of this state.
(21) Juvenile courts, by court rule or by order related to a particular
matter, may direct that records concerning a subject person be destroyed.
No such records shall be destroyed until at least three years have elapsed
after the date of the subject's most recent termination. In the event the
record has been expunged, the expunction judgment and list of complying and
noncomplying agencies may not be destroyed, but shall be preserved under
seal. The destruction of records under this subsection does not constitute
expunction.
(22) An expunction judgment and list of complying and noncomplying
agencies shall be released from confidentiality only on order of the court
originating the expunction judgment, based on a finding that review of a
particular case furthers compliance with the expunction provisions of this
chapter.
(23) A subject has a right of action against any person who intentionally
violates the confidentiality provisions of this section. In any such
proceeding, punitive damages up to an amount of $1,000 may be sought in
addition to any actual damages. The prevailing party shall be entitled to
costs and reasonable attorney fees.
(24) Intentional violation of the confidentiality provisions of this
section by a public employee is cause for dismissal.
(25) A person who intentionally releases all or part of an expunged
record commits a Class C misdemeanor.