On a weekly basis I am contacted by individuals trying to remove criminal convictions an arrest records. This process, often called an expungement, is relatively straightforward, but the “rules” to “qualify” are often complicated and somewhat difficult to understand. The primary benefit is that “upon 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 . . .” The entry of the order further causes all court records, arrest records, and any law enforcement records to be “sealed”, meaning that the information will no longer be publicly available. The individual can then truthfuly answer prospective employers, schools, friends, family, and others that the individual has not been convicted of or arrested for the crime.
The specific statute relating to a motion to set aside (expungement) is found at ORS. 137.225. There are a number of requirements laid out in order to qualify for an expungement. Given the way in which the statute is written, the requirements can be difficult to decipher. However, the inquiry essentially comes down to two factors: (1) the nature of the conviction and (2) the individual’s criminal history.
The first step is to look at the crime itself. Because the majority of crimes in Oregon can be set aside, it is generally helpful to look at the list of “exceptions.” According to ORS 137.225 the following crimes cannot be set aside: Class A felonies, Person Class B felonies, sex crimes (whether a felony or a misdeme anor), child abuse crimes, and traffic offenses. Because there are “exceptions to these exceptions” it is always a good idea to speak to an attorney if there is any question about whether a particular crime is eligible for an expungement. Some crimes are automatically eligible, while others require specific factual findings by the Judge.
The second step is to look at the individual’s past criminal history. The best way to get the required information is to look at an official criminal history report. Obtaining a criminal history report is a relatively easy process, which is explained at the Oregon State Police website (information located here). With the criminal history report in hand, it is possible to see all reported arrests and convictions within the state of Oregon. If the individual has only one (1) criminal conviction the motion to set aside the conviction may be filed three (3) years after the conviction. If the individual has more than one conviction, then the individual must be conviction free for at least ten (10) years. If the crime to be set aside is a Class B felony, the individual must be conviction free (no other convictions) and must wait twenty (20) years after conviction to file the motion. When applying the provisions of the statute, even a conviction that has been “set aside” or “expunged” counts. Due to the interplay of the various time lines, it is possible that some convictions are eligible to be set aside, while others are not. I have had cases, for example, where the more recent charge can be set aside (expunged) but a much older charge cannot be set aside (expunged).
I also deal with clients who have been arrested for a crime, but were never convicted of the crime. This can happen if the District Attorney decides not to prosecute the case, the case is dismissed after negotiation, or a jury finds the individual “not guilty.” In such cases, even though there is no conviction, there is still an “arrest record.” Fortunately, when there is no conviction, it is fairly simply to have the arrest record set aside so that the arrest is deemed to have never occurred. There is (almost) no restriction on which arrests are eligible to be set aside. If no charge is filed, a motion to seal the arrest record may be filed one (1) year after the arrest. If a charge was filed, but was later dismissed, the motion to seal the arrest record can be filed immediately following the dismissal. There are two “exceptions.” First, if the case is dismissed as part of a DUII Diversion program, the arrest record may not be set aside. Second, if the individual has another arrest within three (3) years that has not be set aside, then a motion to set aside the arrest record cannot be granted — meaning the individual must wait to file the motion.
Everyone makes mistakes. Some more serious than others. Some carry long term consequences. Fortunately, by filing a motion to set aside a conviction, the long term consequences of most criminal mistakes can be significantly reduced. If you have a criminal conviction that you would like to get off your record, give our office a call. By getting some basic information over the phone, I can generally let you know if a motion to set aside a conviction would be beneficial. Our office can be reached by calling (503) 362-6528.