Frequently Asked Questions about Oregon Expungements /Expunctions

Sealing one’s Oregon Criminal Record

 

Disclaimer: This is generalized legal advice only. The statutes and laws change from time to time and this website may not always be updated regularly to reflect legal changes. Additionally, this information is not a substitute to individual legal advice on how to expunge your Oregon criminal record.

What statute Governs Oregon Expungements? Oregon Revised Statute 137.255. It is entitled “Order setting aside conviction or record of arrest; fees; prerequisites; limitations.”

Once I apply for an Expungement, how long will it take for the judge to sign the order? This depends on the county. Generally, it takes one to six months to received a final judge’s order expunging one’s record after the paperwork has been submitted.

How long will it take after the expungement order is signed for the record to be sealed? Some counties take weeks, others take months after the order is signed for all of the relevant law enforcement agencies to clear their records.  We recommend verifying that your record has been sealed from official Oregon sites several months after the judge has signed the expungment order.  Thus, one should get started early in the expungement process.

Can my record be expunged if I have been convicted of a Federal Crime? Very few federal crimes qualify for expungement. However, there are narrow exceptions. For instance, if a person under 21 years of age was found guilty of an offence under section 404 of the Controlled Substances Act (21 U.S.C. Sec. 844) may apply for an expungement. For those over 21, you might be more successful with requesting a pardon.

What other than convictions may be expunged? Arrests and violations, with the exception of traffic violations.

Can a Civil Temporary Stalking Order or Temporary Restraining (FAPA) order be Expunged? It is entirely up to judicial discretion. If you won the contested stalking order hearing or FAPA hearing a judge may be more likely to  to expunge a temporary stalking order or the temporary restraining order. However, the issue of civil restraining or stalking orders is not addressed under the state statute for expungements under ORS 137.255. It can be concealed with a motion to the court using the inherent power of the court, only if the judge exercises his/her discretion in your favor. This is an area of the law that needs to be changed, so that a person has a statutory right to expunge his/her record in from unfounded domestic violence allegations. We have a memorandum and motion that can be used to attempt to get a vacated stalking or restraining order record expunged. Usually, I recommend that you accompany the motion with an affidavit by the person who filed the petition for the stalking or restraining order stating there is no objection. Since no statute does not requires expungements of unsuccessful fapa or stalking petitions, success rates may not be high.

Can I expunge a contempt of court? This is an interesting question. A contempt of court is not a conviction for a crime and is not a misdemeanor or felony. A person who has been convicted of a contempt can truthfully answer that they have not been convicted of a crime. I could make a motion to get this off of someone’s record and argue using case law that the court has inherent authority by presenting a memorandum to support the motion. Most court records list a contempt as unclassified misdemeanors, so since it is listed in court records as a crime, an argument could be made that it should be treated as a crime, so that it can be eligible for an expungement.

How long must I wait before I can expunge an arrest? If no accusatory instrument was filed, at any time after the lapse of one year from the date of any arrest. (ORS 137.255(b)). Any time after an acquittal or dismissal, an arrested person may apply for an order setting aside the record of arrest.

How long must I wait before I can expunge a single conviction for one count? Any time after three years has passed since the time of judgment, provided that you have complied with and performed to your sentence and have avoided arrest within the last three years. (See ORS 137 1(a); (7)) Additionally, you must not have any other convictions, excluding certain traffic violations, within the 10-year period immediately preceding the filing of the expungement motion. You must also not have a pending case. Thus, if you have two convictions on your record, even if those two convictions are under the same case number, you must wait 10 years.

If more than 10 years have passed, can I expunge more than one conviction and arrest? Most likely. Under State v. Cowling, 139 Or App 454, 457 (1996), the court has discretion to consider behavior from the motion back to the time of the offense even if the time period is longer than 10 years. In our experience most eligible convictions will be expunged if you have led a crime and arrest free life for the last 10 years.

Will a DUII (Driving Under the Influence of Intoxicant(s)) conviction less than 10 years old prevent me from expunging another matter less than 10 years old? Yes, at least at the trial court level. See ORS 137.225 (6). It could be argued that since a DUII is not expungible and it is a traffic offense that it should not prevent another otherwise eligible offense from expunction. On the other hand, a DUII is a crime, unlike a traffic offense. Unless you have the money for an appeal, we do not recommend attempting an expungement for a case less than ten years old if you also have a DUII less than 10 years old.

What kind of crimes may be expunged?
Generally, Class C Felonies and Misdemeanors with exceptions such as sex crimes, child abuse, criminal mistreatment, endangering the welfare of a minor. (See ORS 137.255(5)).

Can Traffic Offenses be Expunged? No. ORS 137.225 (6) (a) precludes expungement of any traffic offense, either a traffic crime or a infraction. “offense” is defined in ORS 161.505. If the offense is listed in the vehicle code, it cannot be expunged. See ORS 801.555 for the definition of a “traffic offense.” You can find the vehicle code in ORS Chapters 801 – 826.

Can a class B Felony be expunged? It is likely if 20 years have elapsed from the date of the conviction or from the release of imprisonment, whichever is later, provided that you have no other arrests or convictions since then. (See ORS 137.225(8))

Can my record be reopened for any reason after it is expunged? Only upon a showing of good cause may an opposing party to litigation move to unseal your record only for the purposes of investigation by the moving party. (See, ORS 137.225(9) (10)).

What if my conviction was expungable under a previous statute but not the current one? You are probably out of luck, unless you want to make appellate challenges. The Court of Appeals held that withdrawal of the expunction opportunity is not an ex post facto violation. See State v. Burke, 109 Or App 7(1991).

After my record is expunged, will it appear in OJIN (Oregon Judicial Information Network)? No, the expungement will seal this record. However, each county differs in the amount of time taken to seal the record.

Does an Expungement guarantee that nobody can find out about my background?
No. ORS 137.225 only requires a public agencies seal their records of arrests and convictions which have been set aside. Private databases, especially foreign databases, may have copies of public records that have not been updated to reflect expungements. If a company maintains a database of an expunged matter, a cease and desist letter should be sent to the database holder to remove the expunged record or face a civil lawsuit for defamation, assuming they are even subject to jurisdiction in the United States.  Any secondary source may argue that no court order has required them to seal their record and argue truth as a defense, although one could counter argue that once a record is expunged that as a matter of law a person can truthfully state one has not been convicted.

Can an expungement help me in a civil action?
ORS 137.225 (9) “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 shall 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.”

Our advice to civil plaintiffs is to have their record expunged at least six months prior to filing a lawsuit to avoid impeachment of their testimony. When deposed anybody with an expunged record can legally state that they have no conviction(s). If an opposing counsel does not know about an arrest or conviction they are unlikely to apply for an order required for disclosure.

What if I have been denied an expungement or my offense is not expungable under Oregon statute? Sometimes the governor pardons crimes. You can contact the Oregon governor’s office for the current forms. See ORS 144.649.

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