Expungement Checklist Through 12/31/21. Big Changes 1/1/22

EXPUNGING/SETTING ASIDE CRIMINAL ARRESTS, DISMISSALS AND CONVICTIONS

ELIGIBILITY

CONVICTIONS

After the lapse of 3 years from the date of conviction. However, if the person is still on probation or incarcerated, as part of the sentence for the conviction, the person is not yet eligible;
If a person’s probation was revoked, the person may not apply for an order setting aside the conviction until after a period of 10 years form the date of revocation;
This section applies to:
1. A Class B felony, except for a charge including an allegation that the felony involved the use of a firearm, only if:
  1. 20 or more years have elapsed from the date of conviction or the person’s release from imprisonment for the conviction, whichever is later and the person has not been convicted of, arrested or criminally cited for, or charged with any other offense, excluding motor vehicle violations, after the date the person was convicted of the offense sought to be set aside; or
  2. The Class B felony is:
    1. A felony punishable as a misdemeanor;
    2. An offense constituting a violation under state law or local ordinance; or
    3. An offense committed before January 1, 1972, that, if committed after that date, would qualify for an order under this section.
2. A Class C felony or felony punishable as a misdemeanor;
3. Any misdemeanor
The following offenses, although otherwise eligible for an order setting aside a conviction, are not eligible to be set aside:
1. Criminal mistreatment in the second degree if the victim at the time of the crime was 65 years of age or older;
2. Criminal mistreatment in the first degree if the victim at the time of the crime was 65 of age or older, or when the offense constitutes child abuse;
3. Endangering the welfare of a minor when the offense constitutes child abuse
4. Criminal negligent homicide when that offense was punishable as a Class C felony;
5. Assault in the third degree when the person, being at least 18 years old, intentionally or knowingly causes physical injury to a child 10 years of age or younger
6. Any sex crime, unless:
  1. The crime is rape 3, sodomy 3, sexual abuse 3, contributing to the sexual delinquency of a minor, sexual misconduct, or an attempt to commit one of these offenses; and
    1. The person has been relieved of the obligation to report as a sex offender (under 163A.145 or 163A.150 for age based convictions); and
    2. The person has not been convicted of, found guilty except insanity of or found to be within the jurisdiction of the juvenile court based on a crime for which the court is prohibited from setting aside the conviction; or
  2. The sex crime constitutes a Class C felony and;
    1. The person was under 16 years of age at the time of the offense;
    2. The person is:
      1. Less than 2 years and 180 days older than the victim; or
      2. At least 2 years and 180 days older, but less than 3 years and 180 days older, than the victim and the court finds that setting aside the conviction is in the best interest of justice and of benefit to the person and the community;
    3. The victim’s lack of consent was due solely to incapacity to consent by reason of the person being less than a specified age;
    4. The victim as at least 12 years of age at the time of the offense;
    5. The person has not been convicted of, found guilty except for insanity of or found to be within the jurisdiction of the juvenile court based on a crime for which the court is prohibited from setting aside the conviction under this section; and
    6. Each conviction or finding described in this section involved the same victim.
7. A conviction for a state or municipal traffic offense
8. A person convicted, within the 10-year period immediately preceding the fling of the motion, of any offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the conviction that is sought to be set aside. A single violation, other than a motor vehicle violation, within the last 10 years is not a conviction under this subsection. A conviction that has been set aside under this section shall be considered for the purpose of determining whether this section applies.
9. A person who, at the time the time the motion is pending is under charge of commission of any crime.

ARRESTS

At any time after the lapse of 1 year from the date of arrest, citation, or criminal charge, if no accusatory instrument has been filed;
This section does not apply to:
1. A conviction for a state or municipal traffic offense;
2. A person convicted, within the 10-year period immediately preceding the fling of the motion, of any offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the conviction that is sought to be set aside. A single violation, other than a motor vehicle violation, within the last 10 years is not a conviction under this subsection. A conviction that has been set aside under this section shall be considered for the purpose of determining whether this section applies;
3. A person who, at the time the time the motion is pending is under charge of commission of any crime;
4. A person arrested or criminally cited for or charged with an offense within the 3 year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests, citations or charges for conduct associated with the same criminal episode that caused the arrest, citation or charge that is sought to be set aside. An arrest, citation or charge that has been set aside under this section may not be considered for the purpose of determining whether this section applies; or
5. An arrest or citation for driving under the influence of intoxicants if the charge is dismissed as a result of the person successfully completing a driving under the influence of intoxicants diversion agreement.

ACQUITTALS/DISMISSALS

At any time after acquittal or dismissal of the charge, may apply to set aside any record of arrest, citation, or criminal charge;
This section does not apply to:
1. A conviction for a state or municipal traffic offense;
2. A person convicted, within the 10-year period immediately preceding the fling of the motion, of any offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the conviction that is sought to be set aside. A single violation, other than a motor vehicle violation, within the last 10 years is not a conviction under this subsection. A conviction that has been set aside under this section shall be considered for the purpose of determining whether this section applies; or
3. A person who, at the time the time the motion is pending is under charge of commission of any crime.
4. A person arrested or criminally cited for or charged with an offense within the 3 year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests, citations or charges for conduct associated with the same criminal episode that caused the arrest, citation or charge that is sought to be set aside. An arrest, citation or charge that has been set aside under this section may not be considered for the purpose of determining whether this section applies; or
5. An arrest or citation for driving under the influence of intoxicants if the charge is dismissed as a result of the person successfully completing a driving under the influence of intoxicants diversion agreement.

PROCESS

Person must file a motion with the court and serve a copy of the motion, along with a full set of fingerprints, upon the prosecuting attorney;
Prosecuting attorney must provide the victim, if any, of the crime a copy of the motion as well as a hearing notice;
Person must pay a fee of $80 to the Oregon State Police to perform a background check;
Person must pay a filing fee, as established under ORS 21.135, to the court (as of January 2019, the fee is $281);
The court shall schedule a hearing
1. Court may require the filing of affidavits and may require the taking of proof as the court determines appropriate;
2. The victim shall be allowed to make a statement to the court;
3. If the court determines the circumstances and behavior of the applicant, from the date of conviction, or from the date of arrest, citation, or charge if there was no conviction, to the date of the hearing on the motion warrant setting aside the conviction, or the arrest, citation or charge records if there was no conviction, the court shall enter an appropriate order setting aside the conviction, or the arrest, citation, or charge record if there was no conviction;
4. The court shall state that positive identification has been established by the Department of State Police;
Upon entry of the order setting aside the conviction, or arrest, citation, or charge if no conviction was entered, the person, for purposes of the law, shall be deemed not to have been previously conviction, or arrest, cited or charged, if no conviction was entered. The court shall issue an order sealing the record of conviction and other official records in the case;
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, citation charge, or other proceeding shall be deemed not to have occurred, and the person may answer accordingly any question relating to its occurrence.

Amendment Effective January 1, 2020 Related to Qualifying Marijuana Convictions:

In the 2019 legislative session, Senate Bill 420 became law which grants many individuals with qualifying marijuana convictions the ability to expunge their convictions. Senate Bill 420 establishes a slightly different procedure. Importantly, a person filing for an expungement under this section is not required to pay a filing fee, or any other fee, or file a set of fingerprints.

A qualifying marijuana conviction is a conviction for a marijuana offense: 1. that is based upon conduct in ORS 475B.301 or possession of less than an ounce of the dried leaves, stems or flowers of marijuana; 2. was committed prior to July 1, 2015; and 3. For which the person has completed and fully complied with or performed the sentence of the court.

Expunging Oregon Criminal Arrests, Dismissals and Convictions is a Complicated and Complex Process that Takes Time and Experience

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