What does the term Oregon expungement or Oregon expunction mean?
In Oregon, certain crimes can be removed or set aside from person’s criminal record. This process is called an expungement or, in some cases, an expunction. The Oregon expungement process allows a person to ask a court to remove the record of an arrest or any eligible Oregon criminal conviction from their criminal record. If an Oregon judge grants this request, as far as the law is concerned, you are now deemed not to have been previously convicted or arrested of the expunged crime. In other words, the record of the Oregon conviction and arrest shall be ordered to be set aside (expunged), pursuant to ORS 137.225, and shall be deemed for all purposes of law to not have occurred at all.
What is the waiting period for me to have a Oregon criminal conviction expunged from my Oregon criminal record?
The waiting period for an individual to apply to have an Oregon criminal conviction removed from their criminal record can vary. Typically, for an Oregon criminal conviction to be expunged it must have occurred more than three years ago. Excluding motor vehicle violations, the person must also have had no other criminal convictions, including any criminal convictions which have been subsequently set aside (expunged) within a ten year period immediately preceding the expungement request. A person also must have no pending charges in any state.
What do I have to do to request an Oregon expungement of an Oregon arrest or Oregon conviction?
A person who wishes to seek an expungement of a previous Oregon criminal conviction or an Oregon arrest must file a petition in the Circuit Court of the county where the arrest or criminal conviction took place. Additionally, the person must pay a small filing fee and submit a copy of their fingerprint record to the Oregon State Police along with their application. The person must also include in their petition an FBI Identification Number, Oregon State Bureau Number, and the Submitting Agency Number. This legal process can be complicated and can vary between each Oregon county. We strongly recommend that you speak with an experienced Oregon expungement defense lawyer if you think you may qualify for an expungement.
What happens if a judge grants an expungement of my Oregon criminal conviction or Oregon arrest?
If a judge grants a person’s expungement request, the judge will order the Clerk of the Circuit Court to forward a certified copy of that order sealing the record of the conviction to all law enforcement agencies mentioned in the Court’s file, including the Federal Bureau of Investigation (FBI), the Oregon State Police, The Oregon State Corrections Division, and the Sheriff’s Office of the county of conviction. This order mandates that the record of conviction and arrest shall be sealed with the other official records in the person’s case, including investigation reports of the involved law enforcement agencies concerning the same criminal episode. In our experience, it will generally take an additional two months before all records pertaining to a expunged crime and conviction are sealed by the various law enforcement agencies.
What Oregon criminal convictions are eligible for expungement?
As a general rule, in Oregon most misdemeanors are eligible for an Oregon expungement with a few notable exceptions. Most “C felony” level convictions are also eligible for expungement.
Those crimes that are NOT subject to expungement under current Oregon law are:
- In Oregon no sexual offenses which would trigger sex offender registration requirements are eligible for expungement under Oregon law (ORS 137.225(5)(12)).
- No traffic offenses may be expunged under Oregon law. This includes anything in the Oregon traffic code. (ORS 137.225(6)(a)). The most common of these non-expungeable Oregon traffic criminal convictions are the offenses of Driving While Under the Influence of Intoxicants (DUII), Reckless Driving, and Driving While Suspended or Revoked.
- No Oregon convictions for Criminal Mistreatment in the First Degree (involving a child) or Endangering the Welfare of a Minor if these offenses constitute child abuse under 419B.005 or ORS 137.225(5)(C)(B).
- No “A” or “B” level felonies, except for the crimes of possession a delivery of marijuana. (ORS 137.225(5)(c)).
- Under recent developments in Oregon law, some “B felony” convictions may be expunged after a waiting period of 20 years.
If you believe you are eligible for a possible expungement of your Oregon criminal conviction, we could encourage you to speak with an experienced Oregon expungement lawyer.
Are Oregon criminal arrests or dismissed charges eligible for expungement?
Yes. In Oregon, if you meet certain criteria you can expunge your arrest record or the record of any charges that were originally charged or filed but were later dismissed. For an arrest to be expunged, a person must have no other arrests in the last three years and no criminal convictions in the last ten years. There is no waiting period for charges that have been dismissed. (ORS 137.225(1)(b)).
If I did poorly on probation or was revoked from my probation, can I still have a criminal conviction expunged from my Oregon criminal record?
Part of the requirement of obtaining an Oregon expungement is that a person must have fully complied with the sentence of the court that was originally imposed at the time of conviction. ORS 137.225(1)(a) specifies the scope of people who may apply for an expungement of their conviction as being “any defendant who has fully complied with and performed the sentence of the court and whose conviction is described in subsection (5)”. While at first blush this statute would seem to imply that, in order to qualify for an Oregon expungement, a defendant who was put on probation must have successfully complied with their probation and not have been revoked from their probation.
In most Oregon counties, a person must have completed probation and paid back all court ordered financial obligations as part of their sentence. Some people, however, may have been found in willful violation of their probation on several occasions or may have even been revoked from their probation and received a jail sentence. Under current Oregon caselaw, people may still apply for an expungement of the Oregon criminal conviction even if their probation was revoked. In State v. Branham, 220 Or. App. 255 (2008) the Oregon Court of Appeals said that the sentence with which a defendant has to fully comply is the final sentence of the court. In other words, when a person has had their probation revoked and they received a final sentence of jail or prison, they have still arguably fully complied with and performed the full sentence of the court.
The law allows a judge to use his or her discretion in deciding whether to grant an expungement and to take into account the circumstances and behavior of a defendant since the date of their conviction. Obviously, the more time a person has gone without having a probation violation or a new criminal conviction the more likely they are to have an Oregon expungement granted by a judge.
If I have an Oregon criminal conviction that cannot be expunged, do I have any other legal options?
Maybe. In Oregon, all “C level” felony crimes are eligible to be reduced to an “A level” misdemeanors. Additionally, The “B level” felonies of Unlawful Possession of Marijuana and Unlawful Delivery of Marijuana may also be reduced to misdemeanors. Finally, The “A level” felony of Racketeering Activity Unlawful (ORS 166.720) is also able to be reduced to a misdemeanor.
Under ORS 161.705, “the court, considering the nature and circumstances of the crime and the history and character of the defendant, believes that it would be unduly harsh to sentence the defendant for a felony.” This reduction can be significant. Even Oregon crimes that are not subject to being set aside, such as Sexual Abuse II or a felony level DUII, may be reduced to a misdemeanor at a judge’s discretion. This legal option can be an important secondary option for people convicted of lower level felonies that want to reduce their charges to misdemeanors but may not be subject to expungement.
Additionally, other legal remedies may exist to help partially repair someone’s Oregon criminal record. Individuals convicted of some types of Oregon sexual offenses may be able to seek relief from having to register as a sex offender ten years after conviction. People who have lost their right to possess or own a firearm as a result of a felony criminal conviction may similarly be able to petition a court to have their Second Amendment firearm rights restored under ORS 166.274.
These legal issues and others can be complicated and each case and each person is different. We recommend that you consult with an experienced Oregon defense lawyer if you think that you may be eligible to have your legal rights restored.