What is Expungement?

To expunge a criminal record is to erase or seal the contents of a criminal record after a showing of compliance with the law over a substantial period of time. An individual can ask (“move”) the court to sign an order setting aside an arrest or criminal conviction, subject to a number of criteria. This can be life changing for individuals whose records may be holding them back from finding employment or housing, or who simply feel burdened by the knowledge that prior criminal records are available to the public.

Expunging criminal records is a controversial topic among certain communities. There are currently eight states who do not allow expungement, Alaska, Alabama, Florida, Hawaii, Idaho, Massachusetts, Virginia and Texas. Fortunately, both Oregon and Washington have procedures to help individuals with criminal records get a second chance.

Why Expunge Your Record?

What Offenses are Eligible?

Due to the fact that there is no federal law regarding expungement, individual states have drafted their own. Just this year, a new law has taken effect in Oregon, codified in ORS § 137.225, clarifying its expungement procedures, streamlining the process, and updating which convictions are eligible for expungement.

Eligible convictions include contempt of court, violations, C felonies, misdemeanors, possession of controlled substances, marijuana-related cases, and even some B felonies. Each type of conviction carries a number of eligibility criteria, and there are always exceptions.

For example, with regard to marijuana convictions, the law states: “[A] defendant is eligible for an order setting aside a conviction for a criminal offense in which possession, delivery or manufacture of marijuana or a marijuana item as defined in ORS 475B.015 . . . is an element after one year has elapsed from the date of entry of judgment of conviction if:

• (a) The defendant was under 21 years of age at the time of the conviction;
  (b) The defendant has not been convicted of any other offense, excluding motor vehicle violations; and
  (c) The defendant has fully complied with and performed the sentence of the court.” ORS § 137.226.

In other words, each conviction should be analyzed carefully to determine whether expungement is possible in a given context.

What’s the Catch?

Of course, not all categories of criminal convictions can be expunged. Among the types of offenses that cannot be expunged in Oregon are most sex-related convictions, DUI’s, class A felonies (except those related to marijuana) and manufacturing/delivery of schedule 2 controlled substances. No Assault in the third degree can be expunged if the assault was committed against an officer of the law.

Multiple convictions within a specific time period can also stop someone from expunging their record. Most records are eligible for expungement after about 3 years of a defendant’s conviction. The exceptions to this rule are if the defendant had another arrest or conviction during the waiting period, the defendant has been convicted of a prior felony or gross misdemeanor, or the conviction resulted in a deferred prosecution.

“Except as provided in paragraph (c) of this subsection, 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.” ORS § 137.225.

New Expungement Laws in Oregon:

In Oregon, as of January 1, 2022, there are no longer court filing fees for expungement, no more ten-year blocking period, and many non-person Class B felonies are eligible after seven years instead of twenty. The Class B felony conviction eligibility is one of the most important changes to the law, allowing a number of people convicted of more serious drug offenses to expunge their records much sooner.

While the new statute has simplified the process somewhat, the rules regarding expungement are still relatively complex and full of legalese. If you need assistance determining whether your conviction is eligible for expungement, if you were told before this year that you were not eligible for expungement, or if you simply need assistance with court filings to expunge your criminal record, please contact Navigate Law Group.