Oregon Attorney Answers Frequently Asked Questions about
obtaining a Criminal Expungement
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. Caveat: This page has NOT been fully updated for new changes in the law for 2010.
What is an Expungement / Expunction? Expungement and expunction are generally terms used interchangeably with one another. An expungement is the process by which a past criminal offense, violation or arrest is sealed from a person’s record. After an expungement, a person may respond to questions regarding criminal convictions or arrests as though the offense had never occurred. ORS 137.255(4). Under the expungement law, the record will be sealed and employers, landlords or other inquiring minds will not receive information on the offense when performing background checks using state databases. Expungments are also referred to as “expunctions.” Actually, “Expungement” and “Expunction” are misnomers because the records are not actually destroyed. (See ORS 137.225). Historically, “expungement” referred to the physical destruction of the record. However, today with record retention laws and other public policy considerations, complete destruction of the records seldom occurs. The order, if the court grants the motion, is to have the conviction and arrest records sealed. SeeState v. K.P., 324 Or 1 (1996).
What statute Governs Expungements? ORS 137.255. “Order setting aside conviction or record of arrest; fees; prerequisites; limitations.”
How Much will it Cost Me to Retain Attorney, Jennie Clark, to help me expunge my record? For arrests, I charge an $852.00 flat fee per case number, which includes up to, but not necessarily $252.00 in expenses. For convictions, I charge a $932.00 flat fee per case number, which includes filing fees and other miscellaneous expenses up to, but not necessarily, $332.00. My attorney fee rate assumes that the motion is not contested. If the motion is contested, then this will be billed hourly or given a flat fee rate. If a motion to amend an order is required prior to filing for an expungement, there will be an additional charge. An appeal will be subject of a separate contract. The attorney’s fees and court fees cited are subject to change without notice. Only a signed fee agreement is binding. Please call for updated rates.
Once I apply for an Expungement, how long will it take for the judge to sign the order? This depends on the county. Some Counties take weeks and others take months.
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. Some counties take 6 months. 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? Yes, if you won the contested stalking order hearing or FAPA hearing you can expunge a temporary stalking order or the temporary restraining order. However, it is not expunged 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.
Can I expunge a contempt of court? This is an interesting question and a disputed area of law. A civil contempt of court is not a conviction for a crime and is not a misdemeanor or felony. However, sometimes it is incorrectly called an uncategorized misdemeanor. Check with me for legal updates on this issue.
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 conviction? Any time after the lapse of three years from the judgment, provided that you have complied with and performed to your sentence and have not been arrested 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, you must wait 10 years.
If more than 10 years have passed, can I expunge more than one conviction and arrest? Possibly. 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. The court will most likely set aside the most recent conviction, but additional convictions are discretionary.
Will a DUII conviction less than 10 years old prevent me from expunging another matter less than 10 years old? Most likely. Most DA’s are opposing these motions to expunge. See ORS 137.225 (6). There are arguments to the contrary since a DUII is not expungible and it is a traffic offense. On the other hand, it is a crime, unlike a traffic offense. This is really an appellate issue. Unless you have the money for an appeal, I do not recommend attempting an expungement for theses cases, until we have a clear appellate opinion. I have heard that Coos County accepts these expungements. Clackamas county opposes these expungements in my experience.
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 for delivery of a controlled substance be expunged? Possibly. Delivery of a controlled substance can be treated as a misdemeanor under both ORS 475.860 and under the discretion of the court under ORS 161.705. It is a two-step process where the attorney must move to have the felony conviction reduced to a misdemeanor conviction per ORS 161.705(1)(d). Then the misdemeanor conviction can be expunged, assuming everything goes well.
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 out of luck. 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? No, the expungement will seal this record. However, each county differs in the amount of time it takes to seal the record.
Does an Expungement guarantee that nobody can find out about my background? No. ORS 137.225 only requires a public agency to seal their records of arrests and convictions that have been set aside. Some private 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 request should be made to the database holder to remove the expunged record or face a civil lawsuit. The only problem is that it may be difficult to bring a civil lawsuit against a database holder outside of the country. Additionally, a secondary source may argue that no court order has required them to seal their record. Regardless, I would likely recommend filing a lawsuit against any Oregon company that continued to display a conviction record that had been expunged, provided that one could show how they were damaged.
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.”
My advice to civil plaintiffs is to have their record expunged well before filing a lawsuit to avoid impeachment of their testimony. When deposed anybody with an expunged record can legally state that they have no conviction. It is possible, but unlikely, that opposing counsel will find out about the arrest or even know that they can 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 govenor’s office for the current forms. See ORS 144.649. You can call the governor’s office at (503) 378-6246. Also see: http://www.governor.state.or.us/Gov/contact_us.shtml