Bill Text: OR SB763 | 2011 | Regular Session | Engrossed
Bill Title: Relating to expungement.
Spectrum: Committee Bill
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB763 Detail]
Download: Oregon-2011-SB763-Engrossed.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3308
A-Engrossed
Senate Bill 763
Ordered by the Senate May 3
Including Senate Amendments dated May 3
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Authorizes setting aside conviction for certain sex crimes and
expungement of juvenile records related to adjudication for
certain sex crimes under certain circumstances.
{ - Directs Department of State Police to remove record
related to sex crime from Law Enforcement Data System when
conviction is set aside or adjudication is expunged. - }
A BILL FOR AN ACT
Relating to expungement; creating new provisions; and amending
ORS 137.225 and 419A.262.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 137.225 is amended to read:
137.225. (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 (12) 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 conviction 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) { + (a) + } Notwithstanding subsection (5) of this section,
the provisions of subsection (1)(a) of this section { + :
(A) + } Do not apply to criminally negligent homicide under ORS
163.145, when that offense was punishable as a Class C felony.
{ + (B) Apply to a conviction for a sex crime listed in ORS
181.830 (1)(a) if:
(i) 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, any crime other than the conviction that
is the subject of the motion; and
(ii) The person has been relieved of the obligation to report
as a sex offender pursuant to a court order entered under ORS
181.832 or 181.833.
(b) Notwithstanding any other provision of law, for purposes of
paragraph (a)(B) of this subsection a conviction that has been
set aside under this section or an adjudication that has been
expunged under ORS 419A.262 shall be considered for determining
whether paragraph (a)(B) of this subsection is applicable. + }
(8) The provisions of subsection (1)(b) of this section do not
apply to:
(a) 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.
(b) An arrest for driving while under the influence of
intoxicants if the charge is dismissed as a result of the
person's successful completion of a diversion agreement described
in ORS 813.200.
(9) 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.
(10) 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.
(11) 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.
(12) 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) 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.
(13) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
SECTION 2. ORS 419A.262 is amended to read:
419A.262. (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) - } { +
(11) + } 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) - } { + (11) + } 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) - } { + (11) + } of this section unless the person has
reached 21 years of age.
{ + (8)(a) Notwithstanding ORS 419A.260 (1)(d)(J)(x), (xiii)
or (xviii), a person who has been found to be within the
jurisdiction of the juvenile court based on an act that if
committed by an adult would constitute rape in the third degree
under ORS 163.355, sodomy in the third degree under ORS 163.385
or sexual abuse in the third degree under ORS 163.415, or an
attempt to commit those crimes, may apply for an order of
expunction under this section. The court shall order expunction
of the records in the case if, after a hearing when the matter is
contested, the court finds:
(A) That the person meets the requirements of subsection (2) of
this section;
(B) 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, any crime other than the adjudication
that is the subject of the motion; and
(C) The person has been relieved of the obligation to report as
a sex offender pursuant to a court order entered under ORS
181.832 or 181.833.
(b) Notwithstanding any other provision of law, for purposes of
this subsection a conviction that has been set aside under ORS
137.225 or an adjudication that has been expunged under this
section shall be considered for determining whether this
subsection is applicable. + }
{ - (8) - } { + (9) + }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) - } { + (10) + }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) - } { + (11)(a) + } Notice and a copy of an
application for expunction under subsections (2) to { - (7) - }
{ + (8) + } 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) - } { + (12) + } Within 30 days of receiving the
notice of application for expunction under subsection
{ - (10) - } { + (11) + } 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) - } { + (13)
to (16) + } of this section.
{ - (12) - } { + (13) + } When an expunction is pending
pursuant to subsections (2) to { - (7) - } { + (8) + } 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) - } { + (12) + } 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) - } { + (14)(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) - } { + (12) + } 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) - } { + (15) + } 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) - } { + (16) + } At the conclusion of a hearing on
a pending expunction, the court shall issue judgment granting or
denying expunction.
{ - (16) - } { + (17) + } 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) - } { + (18) + } 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) - } { + (17) + }
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) - } { + (19) + } 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) - } { + (20) + } 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) - } { + (21) + } 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) - } { + (22) + } 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) - } { + (23) + } 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) - } { + (24) + } 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) - } { + (25) + } Intentional violation of the
confidentiality provisions of this section by a public employee
is cause for dismissal.
{ - (25) - } { + (26) + } A person who intentionally
releases all or part of an expunged record commits a Class C
misdemeanor.
SECTION 3. { + The amendments to ORS 137.225 and 419A.262 by
sections 1 and 2 of this 2011 Act apply to motions filed on or
after the effective date of this 2011 Act involving a conviction
or adjudication that occurred before, on or after the effective
date of this 2011 Act. + }
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