Oregon Criminal Expungement
Attorney Joe Durkee
ABOUT CRIMINAL EXPUNGEMENTS | FREQUENTLY ASKED QUESTIONS | JUVENILE EXPUNGEMENTS
:: ABOUT OREGON CRIMINAL EXPUNGEMENTS-EXPUNCTIONS::
WHAT IS A MOTION TO SET ASIDE A CRIMINAL CONVICTION
(Expungement-Expunction)?
A simple arrest or criminal citation stays on your record unless you take action to
have that record sealed. This is true even if no charges are brought against you,
the charges are dismissed, or you are found “not guilty” at trial. A Motion
to Set Aside, if granted by the court, sets aside the record of a conviction/arrest and
there after you are deemed not to have been previously convicted/arrested. The court
orders the record of the conviction/arrest and any other official records in the case
to be sealed. In the eyes of the law, the violation that led to the conviction/arrest
did not occur and the record does not exist. Law enforcement agencies are required to
seal their investigative reports of the incident.
WHAT TYPES OF CONVICTIONS QUALIFY FOR A MOTION TO SET ASIDE(Expungement-Expunction)?
Any “C” class felony, any misdemeanor, including any violations of
county/city ordinances, any crime punishable as either a misdemeanor or a felony at the
discretion of the Court, any violation (under state or local law). The crime of
marijuana (when it was punishable as a felony only). An offense committed before
January 1, 1972 which present law would classify under the categories listed, except
for any sex crime or any crime which would constitute child abuse as defined in
ORS419B.005: Criminal Mistreatment 1 (ORS 163.205) or Endangering the Welfare of a
Minor (ORS 163.5751A).
WHAT ARE THE OTHER REQUIREMENTS FOR A MOTION TO SET ASIDE(Expungement-Expunction)?
If you have only one conviction (excluding traffic offenses), you must wait three (3)
years from the date of the conviction. You must have fully complied with and performed
the sentence of the court. You must not have any pending criminal charges. If you have
more than one offense (excluding traffic offenses, but including any convictions for
conduct associated with the conviction sought to be set aside), you must wait ten (10)
years preceding the filing of this motion. Also, you must not have any conviction set
aside within the ten (10) year period preceding the filing of this motion. The Court
determines if the circumstances merits expungement.
WHAT ARE THE STEPS TO CLEARING A RECORD(Expungement-Expunction)?
a. You will need to sign
the “Affidavit in Support of Motion to Set Aside Record of Conviction and Records
of Arrest” in front of a notary public. I will create the Affidavit for you.
b. You will need to have a complete set of fingerprints taken. Most police
agencies offer this service for a fee. The person taking your fingerprints will
sign
and date the fingerprint card which the agency will provide to you. They should fill
out the address of the agency where it says “employer and address” below
the signature blank. The reason given, for fingerprinting is "expunction.
HOW LONG WILL IT TAKE TO GET AN EXPUNGEMENT-EXPUNCTION(Expungement-Expunction)?
The process may
take up to three (3) months from the date of filing before the order is signed by a
judge and your records are sealed. Additionally, if the District Attorney takes
issue with your motion, they may reject it or request a hearing. If this occurs, a date
will be set by the court docketing office and you will be notified to appear before the
court to argue why you believe you are eligible to have your records sealed. The
District Attorney will argue why you may not be eligible and ultimately, the judge will
decide. If the District Attorney has no issue with your application, the order
will be forwarded to the judge for signature. You will receive a certified copy of the
signed order. Upon your receipt of the signed order, you will know that your records
will be sealed, however, it may take up to three (3) additional months for all your
records to be completely sealed.
HOW DO MY RECORDS GET SEALED(Expungement-Expunction)?
Upon receipt of the signed
order, the clerk of the court enters the order, seals the court records (if any) and
removes them from public record. The clerk then sends a certified copy of the order to
agencies such as the FBI, Oregon State Police, the arresting police bureau, the
Sheriffs Office, the Probation Office and any others as directed by the court. These
agencies are required to destroy or seal their investigative reports concerning the
incident.
CAN THE RECORD BE RE-OPENED(Expungement-Expunction)?
Setting aside an arrest record does not absolutely eliminate the record. The court
could be asked to unseal your record, but only exceptional circumstances would warrant
this. A court order is required to unseal the record.
:: FREQUENTLY ASKED QUESTIONS ABOUT OREGON CRIMINAL EXPUNGEMENTS-EXPUNCTIONS ::
What does “expungement and expunction mean(Expungement-Expunction)? Expungement and expunction are terms used interchangeably. Expungement-expunction is when a past criminal offense, violation or arrest is sealed in the courts and law enforcement agency records. After an Oregon 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 Oregon Criminal Expungement law, the record is sealed and employers, landlords and other inquiring minds will not be privy to information concerning the expunged offense when conducting background checks using state databases. Expungements are also referred to as "expunctions." The terms "Expungement" and "Expunction" are misleading terms because the records are not destroyed. (See ORS 137.225). Today, complete destruction of the records rarely occurs. An order Setting Aside a Conviction merely requires the conviction and arrest records sealed. See State v. K.P., 324 Or 1 (1996).
How much will it Cost Me to Retain Attorney, Joe Durkee, to help me expunge my record(Expungement-Expunction)? Usually, $1,000.00 for attorney fees per expungement application plus a $250.00 filing fee. This rate assumes that the motion is uncontested. If the motion is contested, you will be billed hourly or given a flat fee rate. An appeal will be subject of a separate contract.
How much does expungement-expunction fingerprinting cost and where can I get it done(Expungement-Expunction)?
Fingerprinting usually costs between $15.00 to $20.00. You can have your fingerprints taken at your local Sheriff's office or at an Oregon State Police Office. Call ahead of time to make sure that the office provides fingerprinting services and the hours of operation. The fingerprint card should contain the notation "Motion for setting aside arrest record."
How long does it take to get an expungement-expunction? It varies with each county. Some Counties take weeks and others take months.
Once the expungement-expunction Order is signed how long does it take before my records are sealed(Expungement-Expunction)? It can take up to 6 months.
What about Federal Crimes? Few federal crimes can be expunged. There are some exceptions. For instance, if a person under 21 years of age was found guilty of an offense 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(Expungement-Expunction)? Arrests and violations, but not traffic violations.
Can a Civil Temporary Stalking Order or Temporary Restraining (FAPA) order be Expunged(Expungement-Expunction)? Yes, but only if you won the contested stalking order hearing or FAPA hearing you can expunge a temporary stalking order or the temporary restraining order. It is not expunged under the state statute for expungements under ORS 137.255. It can be sealed with a motion to the court using the inherent power of the court.
How long do I have to wait before I can expunge an arrest(Expungement-Expunction)? 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 do I have wait before I can expunge a conviction(Expungement-Expunction)? Any time after the lapse of three years from the judgment, provided that you have complied the terms of your sentence and have not been arrested within the last three years. (See ORS 137 1(a); (7)) Also, 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. If you have more than one conviction, you must wait 10 years.
If more than 10 years have passed, can I expunge more than one conviction and arrest(Expungement-Expunction)? Not necessarily. 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.
What kind of crimes may be expunged(Expungement-Expunction)? Generally, Class C Felonies and Misdemeanors except sex crimes, child abuse, criminal mistreatment, endangering the welfare of a minor. (See ORS 137.255(5)).
Can Traffic Offenses be expunged(Expungement-Expunction)? No. ORS 137.225 (6) (a) precludes expungement of any traffic offense, either a traffic crime or 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(Expungement-Expunction)? Maybe. 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(Expungement-Expunction)? Only upon a showing of good cause may an opposing party to litigation move to unseal your record but only for the purposes of investigation by the moving party. (See, ORS 137.225(9) (10)).
What if my conviction was expungeable under a previous statute but not the current one(Expungement-Expunction)? The expungement will not be allowed. 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).
Does an Expungement-expunction guarantee that nobody can find out about my background(Expungement-Expunction)? 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-expunction help me in a civil action(Expungement-Expunction)? 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.
I was convicted of prostitution in Oregon. Can I expunge this offense?
Yes, this offense may be expunged if you're otherwise eligible.
I was convicted of possession of marijuana which is a Class B felony. Can I expunge this conviction?
Possession of marijuana is eligible for expunction under Oregon law. See ORS 137.225(5)(b).
I have an Oregon DUII conviction / DUII diversion on my record. Can I expunge / seal this offense?
No. Traffic offenses, including charges of DUII, reckless driving, hit and run (failure to perform duties of a driver), speeding, etc. CANNOT be expunged under Oregon law. Some states do allow DUI charges to be expunged / sealed; however Oregon does not.
The 2009 Legislative Assembly is expected to pass House Bill 2318. If passed in its current form, DUII (and other traffic crime) arrests could be expunged if the charge was dismissed (other than DUII diversion-related dismissals) or if the prosecutor declined prosecution on the case. However, DUII convictions and dismissals resulting from the successful completion of the diversion program still could not be sealed or expunged. Stay tuned.
:: THE OREGON CRIMINAL EXPUNGEMENT-EXPUNCTION STATUTE ::
ORS 137.225
137.225 Order setting aside conviction or record of arrest; fees; prerequisites; limitations.
(1)
(2)
(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. Except as otherwise provided in subsection (11) 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 which 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 such an 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 such an order, such conviction, arrest or other proceeding shall be deemed not to have occurred, and the applicant may answer accordingly any questions relating to their occurrence.
(5) The provisions of subsection (1)(a) of this section apply to a conviction of:
(6) Notwithstanding subsection (5) of this section, the provisions of subsection (1) of this section do not apply to:
(7) The provisions of subsection (1)(b) of this section do not apply to 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.
(8) The provisions of subsection (1) of this section apply to convictions and arrests which occurred before, as well as those which occurred after, September 9, 1971. There shall be no time limit for making such application.
(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.
(10) 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 shall have no other effect on the orders setting aside the conviction or the arrest record.
(11) 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:
(12) As used in this section, "sex crime" has the meaning given that term in ORS 181.594. [1971 c.434 s.2; 1973 c.680 s.3; 1973 c.689 s.1a; 1973 c.836 s.265; 1975 c.548 s.10; 1975 c.714 s.2; 1977 c.286 s.1; 1983 c.556 s.1; 1983 c.740 s.17; 1987 c.320 s.31; 1987 c.408 s.1; 1987 c.864 s.6; 1989 c.774 s.1; 1991 c.830 s.6; 1993 c.546 s.98; 1993 c.664 s.2; 1995 c.429 s.9; 1995 c.743 s.1]
Under Oregon law (ORS 419A.260 - 419A.262), juvenile court records can be expunged. Expunction is defined as the removal and destruction of all delinquency reports, judgments, orders, and records on file with the juvenile department or law enforcement and other agencies.
How soon your record can be expunged depends on whether or not you have been found to be within the jurisdiction of the Court. Jurisdiction means the Court has found you have committed a law violation.You can ask to have your record expunged;
At age 21 your record will be automatically reviewed for expungement except for persons found within juvenile court jurisdiction for the non-expungeable offenses listed below.
If you meet the above conditions, you can apply to the Multnomah County Juvenile Court for expunction of your records. If you do not meet conditions A through E, the court may expunge your record if it finds it would be in your best interest and in the best interest of the public to do so.
If the District Attorney's Office objects to your application for expunction because five years have not elapsed since your last Juvenile Court termination, you have the right to request a court hearing. The Court may still expunge your record in spite of an objection from the District Attorney's Office.
If your expunction request is granted, record destruction includes files in any agency known to have such information. Upon entry of an expunction order, police, court or other contacts shall be treated as though they never occurred. You may legally say that the record never existed and that the contact never occurred. An agency subject to the expunction order shall inform anyone who asks about you that no record exists. You are entitled to a copy of the expunction order and a list of the agencies which have complied with the order. Anyone violating your right to confidentiality commits a Misdemeanor, and an intentional violation may constitute an invasion of your privacy, giving you the right to an action against the violator for punitive damages in the amount of $1,000, in addition to any actual damages, costs and attorney's fees.
NON-EXPUNGEABLE JUVENILE RECORDS INCLUDE ANY RECORDS IN CASES UNDER ORS 419C.005 IN WHICH A JUVENILE COURT FOUND A PERSON TO BE WITHIN THE JURISDICTION OF THE COURT BASED UPON THE PERSON'S COMMISSION OF AN ACT WHICH WOULD CONSTITUTE CHILD ABUSE AS DEFINED IN ORS 419B.005 AND IF DONE BY AN ADULT WOULD CONSTITUTE ONE OF THE FOLLOWING OFFENSES:
Criminal mistreatment in the first degree under ORS 163.205;
Rape in the third degree under ORS 163.355;
Rape in the second degree under ORS 163.365;
Rape in the first degree under ORS 163.375;
Sodomy in the third degree under ORS 163.385;
Sodomy in the second degree under ORS 163.395;
Sodomy in the first degree under ORS 163.405;
Unlawful sexual penetration in the second degree under ORS 163.408;
Unlawful sexual penetration in the first degree under ORS 163.411;
Sexual abuse in the third degree under ORS 163.415;
Sexual abuse in the second degree under ORS 163.425;
Sexual abuse in the first degree under ORS 163.427;
Promoting prostitution under ORS 167.012; and
Compelling prostitution under ORS 167.017;
and
ANY RECORDS IN CASES UNDER ORS 419C.005 IN WHICH A JUVENILE COURT FOUND A PERSON TO BE WITHIN THE JURISDICTION OF THE COURT BASED UPON THE PERSON'S COMMISSION OF AN ACT WHICH IF DONE BY AN ADULT WOULD CONSTITUTE ONE OF THE FOLLOWING OFFENSES:
Aggravated murder under ORS 163.095;
Murder under ORS 163.115;
Manslaughter in the first degree under ORS 163.118;
Manslaughter in the second degree under ORS 163.125; or
Criminally negligent homicide under ORS 163.145.
:: OREGON JUVENILE EXPUNGEMENT STATUTE::
419A.260 Expunction; definitions. (1) As used in this section and ORS 419A.262:
(a) “Contact” means any instance in which a person’s act or behavior, or alleged act or behavior, which could result in a juvenile court’s assumption of jurisdiction under ORS 419B.100 (1)(a) to (c) and (f) or 419C.005 comes to the attention of an agency specified in paragraph (d) of this subsection.
(b) “Expunction” means:
(A) The removal and destruction or sealing of a judgment or order related to a contact and all records and references; and
(B) Where a record is kept by the Department of Human Services or the Oregon Youth Authority, either the sealing of such record by the department or the Oregon Youth Authority or, in a multiperson file, the affixing to the front of the file, by the department or the youth authority, a stamp or statement identifying the name of the individual, the date of expunction and instruction that no further reference shall be made to the material that is subject to the expunction order except upon an order of a court of competent jurisdiction.
(c) “Person” includes a person under 18 years of age.
(d) “Record” includes a fingerprint or photograph file, report, exhibit or other material which contains information relating to a person’s contact with any law enforcement agency or juvenile court or juvenile department and is kept manually, through the use of electronic data processing equipment, or by any other means by a law enforcement or public investigative agency, a juvenile court or juvenile department or an agency of the State of Oregon. “Record” does not include:
(A) A transcript of a student’s Youth Corrections Education Program academic record;
(B) Material on file with a public agency which is necessary for obtaining federal financial participation regarding financial assistance or services on behalf of a person who has had a contact;
(C) Records kept or disseminated by the Department of Transportation, State Marine Board and State Fish and Wildlife Commission pursuant to juvenile or adult order or recommendation;
(D) Police and court records related to an order of waiver where the matter is still pending in the adult court or on appeal therefrom, or to any disposition as an adult pursuant to such order;
(E) Records related to a support obligation;
(F) Medical records;
(G) Records of a proposed or adjudicated termination of parental rights and adoptions;
(H) Any law enforcement record of a person who currently does not qualify for expunction or of current investigations or cases waived to the adult court;
(I) Records and case reports of the Oregon Supreme Court and the Oregon Court of Appeals;
(J) Any records in cases under ORS 419C.005 in which a juvenile court found a person to be within the jurisdiction of the court based upon the person’s commission of an act which if done by an adult would constitute one of the following offenses:
(i) Aggravated murder under ORS 163.095;
(ii) Murder under ORS 163.115;
(iii) Attempt, solicitation or conspiracy to commit murder or aggravated murder;
(iv) Manslaughter in the first degree under ORS 163.118;
(v) Manslaughter in the second degree under ORS 163.125;
(vi) Criminally negligent homicide under ORS 163.145;
(vii) Assault in the first degree under ORS 163.185;
(viii) Criminal mistreatment in the first degree under ORS 163.205;
(ix) Kidnapping in the first degree under ORS 163.235;
(x) Rape in the third degree under ORS 163.355;
(xi) Rape in the second degree under ORS 163.365;
(xii) Rape in the first degree under ORS 163.375;
(xiii) Sodomy in the third degree under ORS 163.385;
(xiv) Sodomy in the second degree under ORS 163.395;
(xv) Sodomy in the first degree under ORS 163.405;
(xvi) Unlawful sexual penetration in the second degree under ORS 163.408;
(xvii) Unlawful sexual penetration in the first degree under ORS 163.411;
(xviii) Sexual abuse in the third degree under ORS 163.415;
(xix) Sexual abuse in the second degree under ORS 163.425;
(xx) Sexual abuse in the first degree under ORS 163.427;
(xxi) Promoting prostitution under ORS 167.012;
(xxii) Compelling prostitution under ORS 167.017;
(xxiii) Aggravated vehicular homicide under ORS 163.149; or
(xxiv) An attempt to commit a crime listed in this subparagraph other than manslaughter in the second degree and criminally negligent homicide;
(K) Blood samples, buccal samples and other physical evidence and identification information obtained, stored or maintained by the Department of State Police under authority of ORS 137.076, 181.085 or 419C.473; or
(L) Records maintained in the Law Enforcement Data System under ORS 181.592.
(e) “Termination” means:
(A) For a person who is the subject of a record kept by a juvenile court or juvenile department, the final disposition of a case by informal means, by a decision not to place the person on probation or make the person a ward of the court after the person has been found to be within the court’s jurisdiction, or by a discontinuance of probation or of the court’s wardship.
(B) For a person who is the subject of a record kept by a law enforcement or public investigative agency, a juvenile court or juvenile department or an agency of the State of Oregon, the final disposition of the person’s most recent contact with a law enforcement agency.
(2) The juvenile court or juvenile department shall make reasonable effort to provide written notice to a child who is within the court’s jurisdiction under ORS 419B.100 (1)(a) to (c) and (f) or to a youth who is within the court’s jurisdiction under ORS 419C.005, and to the child’s or youth’s parent, of the procedures for expunction of a record, the right to counsel under this chapter, the legal effect of an expunction order and the procedures for seeking relief from the duty to report as a sex offender provided under ORS 181.823, at the following times:
(a) At any dispositional hearing or at the time of entering into a formal accountability agreement;
(b) At the time of termination;
(c) Upon notice to the subject of an expunction pending pursuant to application of a juvenile department or motion on a juvenile court; and
(d) At the time of notice of execution of an expunction order. [1993 c.33 §50; 1993 c.546 §93; 1993 c.602 §2; 1995 c.422 §69; 1999 c.97 §4; 1999 c.111 §1; 1999 c.626 §17; amendments by 1999 c.626 §40 repealed by 2001 c.884 §1; 2001 c.884 §§3b,3d; 2007 c.867 §8]
419A.262 Expunction proceeding; notice to victim; effect of expunction; confidentiality; penalties. (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) 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) 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) of this section unless the person has reached 21 years of age.
(8) 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) 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) Notice and a copy of an application for expunction under subsections (2) to (7) 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) Within 30 days of receiving the notice of application for expunction under subsection (10) 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) of this section.
(12) When an expunction is pending pursuant to subsections (2) to (7) 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) 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) 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) 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) 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) At the conclusion of a hearing on a pending expunction, the court shall issue judgment granting or denying expunction.
(16) 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) 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) 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) 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) 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) 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) 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) 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) 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) Intentional violation of the confidentiality provisions of this section by a public employee is cause for dismissal.
(25) A person who intentionally releases all or part of an expunged record commits a Class C misdemeanor.
[1993 c.33 §51; 1993 c.546 §9; 1997 c.249 §132; 1999 c.111 §2; 2001 c.480 §7; 2001 c.622 §45; 2007 c.609 §10]
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