Oregon Expungement Package - Arrested but not Charged
Oregon Procedures for Setting Aside Arrest Records and/or a Conviction
1. What is an expungement?
An individual who has successfully gained expungement of a criminal conviction is entitled to answer "No" when asked if he has a prior criminal conviction within the context of an employment application. As a result of a successful expungement motion, all official records of the arrest or conviction must be sealed.
2. Do the records just disappear?
No. Juvenile courts, may direct that records be destroyed. No such records shall be destroyed until at least three years have elapsed after the date of the person's most recent termination. In the event the record has been expunged, the expunction judgment and list of complying and noncomplying agencies shall not be destroyed, but shall be preserved under seal. This destruction does not constitute expunction. O.S. § 419A.262.
In records of adults arrested or convicted, expunction means the setting aside of the arrest or conviction and sealing of records. The setting aside of an arrest or a conviction does not absolutely close the records. The Court could be asked to unseal your record, but only exceptional circumstances would justify this. A Court Order is required to unseal a record. O.S. § 137.225.
What records may be expunged? In adult cases, police records, court records, probation or parole records, and jail or prison records may be expunged. O.S. § 137.225. Police investigation records may also be ordered expunged, see, State v. K.P., 324 Or. 1 (1996).
In juvenile cases, the court 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. O.S. § 419A.262.
3. Who is eligible for an expungement?
For expunction of juvenile records, the following conditions must be met:
<blockquote>(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 (delinquency and dependency cases); and
(e) The juvenile department is not aware of any pending investigation of the conduct of the person by any law enforcement agency.</blockquote>
Also, 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:
<blockquote>(a) The person never has been found to be within the jurisdiction of the court; or
(b) The conditions listed in the preceeding paragraphs have been met.</blockquote>
Regardless of the above, the court may also order juvenile records expunged when it finds it is in the best interests of justice. O.S. § 419A.262.
For adults records sought to be set aside under O.S. §137.225 the following conditions must be met:
<blockquote>1. 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; or
1. At least three years have passed from the date of conviction; and
2. You fully complied with all requirements of your sentence, including payment of restitution and all other financial obligations; and
3. You have no pending criminal charges; and
4. You have no other convictions (except traffic convictions) within the ten-year period preceding the filing of this motion. Convictions which have previously been set aside or convictions for conduct associated with the conviction you are now seeking to set aside are counted, if they occurred within the ten year period;and
5. The conviction you want set aside is not a state or municipal traffic offense; and
6. The type of conviction your motion is based upon is:
<blockquote> (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) Attempted robbery in the second degree, ORS 164.405.
(k) Robbery in the third degree, ORS 164.395.
(l) Supplying contraband, ORS 162.185.
(m) Unlawful use of a weapon, ORS 166.220.
Exceptions: The conviction does not qualify for a motion to set aside if it involved:
<blockquote>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.
(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) Criminally negligent homicide under ORS 163.145, when that offense was punishable as a Class C felony.<br />
<br />
(8) A person arrested within the three-year period immediately<br />
preceding the filing of the motion for any offense, excluding motor<br />
vehicle violations, and excluding arrests for conduct associated with the<br />
same criminal episode that caused the arrest that is sought to be set<br />
aside.<br />
<br />
(9) The provisions of subsection (1) of this section apply to<br />
convictions and arrests that occurred before, as well as those that<br />
occurred after, September 9, 1971. There is no time limit for making an<br />
application.<br />
<br />
You may qualify to have your arrest record set aside if:<br />
<br />
(1) You do not have any pending criminal charges; and<br />
(2) You have no convictions (other than minor traffic convictions) within the ten-year period preceding the filing of the motion. Convictions which have previously been set aside or convictions for conduct associated with the conviction you are now seeking to set aside are counted, if they occurred within the ten year period; and<br />
(3) You have no other arrests within a three year period preceding the filing of the motion (except for minor traffic offenses and arrests for conduct associated with the arrest you are seeking to have set aside); and<br />
(4) The arrest you want set aside is not a state or municipal traffic offense; and<br />
(5) One of the following applies to the arrest you seek to have set aside:<br />
<br />
a) No accusatory instrument (charging you with a crime) was ever filed and at least one year has passed from the date of arrest to the date you file the motion to set aside. If you “secreted” yourself inside or outside of Oregon, the time in which you did this does not count as part of the one year period; or<br />
b) You were charged with a crime but the charges were dismissed or you were acquitted at trial (found not guilty). If this happens you can file the motion to set aside at any time and do not need to wait one year from the date of arrest; or<br />
c) The arrest you are seeking to have set aside resulted in a conviction of the type described in subsections “a” through “f” of section six, above. It is not a sex crime or a crime involving child abuse, as described in section “g” above. *<br />
* An arrest for a sex crime or a crime involving child abuse may be set aside if it did not result in a conviction.<br />
<br />
4. How do I get records expunged?<br />
<br />
For juvenile records sought to be expunged under O.S. § 419A.262, an expunction proceeding shall be commenced in the county where the subject person resided at the time of the most recent termination. 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 may order expunction if it finds the above described conditions are met or it is in the interests of justice to expunge the records.<br />
<br />
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 which 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 which a reasonable search of department files indicates have expungible records.<br />
<br />
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 must be served with notice and a copy of of the motion. Within 30 days of being served with the notice of application for expunction, a district attorney shall give written notice of any objection. If objections are filed or the court intends to deny the subject person’s motion to expunge, a hearing will be held. Actual notice must be served upon the subject of the records when the person is over 21 years old.<br />
<br />
For adult records, if you do not have an attorney to do this work for you, fill out a Motion to Set Aside a conviction or arrest record and a supporting Affidavit. The Motion and Affidavit are legal forms which you may purchase at any legal stationery store. Have the Affidavit notarized or you must bring it to the courthouse and in the presence of a deputy clerk of the court, swear to the truth of what you have written and sign the Affidavit in the presence of the clerk. Make sure that your current mailing address is on the forms.<br />
<br />
a) You will need the case number (for a conviction, dismissed charge or acquittal), or the arrest number of the arresting agency or the citation in lieu of custody number if there was an arrest with no charging instrument (Complaint, information or indictment) ever being filed. The arrest information can be provided to you by the arresting agency.<br />
b) You will need to have your fingerprints taken on a fingerprint card.<br />
c) Submit the original of the Motion and Affidavit to the Court<br />
d) Submit a copy of the original Motion and Affidavit, plus the original fingerprint card to the District Attorney’s Office. If you are moving to set aside a conviction, rather than an arrest, dismissal or acquittal, then you must attach to the fingerprint card that is served upon the prosecution attorney with a money order or a check from an attorneys trust fund made payable to the Department of State Police in the amount of $80.00. (This cannot be a personal check). This payment is mandatory and cannot be waived by the Court. Retain a copy of all papers for your own records.<br />
e) After the District Attorney responds to your Motion, the Court may allow your Motion without a hearing. If a hearing is to be held, you will be notified by mail of the date, time and location; the date will be at least one month away from the time you submit your Motion to the Court. Unless waived by the Court, an appearance at this hearing will be required. If a hearing is necessary, and you fail to appear, then your Motion may be denied or dismissed. If the Court allows your Motion without a hearing, you will be notified by mail of its decision. The District Attorney’s Office will prepare a final Order to be signed by the appropriate judge. The District Attorney’s Office will mail a copy of the final Order to you. Certified copies of this Order will be mailed to the police agencies. After the Motion is granted, your record is considered clear, and you have the legal right to answer “no” to any questions which ask if you were ever arrested or convicted of a crime.<br />
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Both you and the District Attorney have the right to appeal the Court’s decision. An appeal must be made within 30 days by filing a Notice of Appeal in the Oregon Court of Appeals.
