Order setting aside conviction or record of criminal charge
- fees
- prerequisites
- limitations
Mentioned in
Changes to Oregon Expungement Law Eligibility
“Oregon expungement law has seen some dramatic changes in the past few years. Senate Bill 397 took effect January 1, 2022. It reduces most set aside timelines and has a profound effect on overall eligibility.”
Bibliographic info
Source:
Section 137.225 — Order setting aside conviction or record of criminal charge; fees; prerequisites; limitations, https://www.oregonlegislature.gov/bills_laws/ors/ors137.html.
Notes of Decisions
Nothing in this section indicates the legislature intended that the courts should examine straight felony convictions preceding the 1971 code to see if they might have fit as either felonies or misdemeanors if committed after the effective date of the code. State v. Thompson, 20 Or App 61, 530 P2d 532 (1975)
State has standing to appeal expunction order under statute governing appeals from special statutory proceedings. State v. Young, 24 Or App 5, 544 P2d 179 (1976), Sup Ct review denied
Failure to perform duties of driver at scene of accident which resulted in death of person is state traffic offense and therefore not expungeable. State v. Greer, 26 Or App 605, 553 P2d 1087 (1976)
Notwithstanding that three convictions of defendant had been set aside for unconstitutionality of statute on which based, expunction of records thereof was available under this section as it makes no distinction between valid convictions and those subsequently declared invalid. State v. Hammond, 34 Or App 893, 580 P2d 556 (1978)
This section does not give the courts authority to expunge or seal arrest records of persons arrested but not convicted of any crime. Springer v. State, 50 Or App 5, 621 P2d 1213 (1981), Sup Ct review denied
Providing remedy of expunction and sealing of records for certain convicted persons under this section, while providing no comparable remedy to unconvicted persons was not denial of equal protection. Springer v. State, 50 Or App 5, 621 P2d 1213 (1981), Sup Ct review denied
Defendant in civil defamation case could rely on fact as defense that conviction actually occurred notwithstanding that this section entitles convicted person to deny conviction. Bahr v. Statesman Journal, 51 Or App 177, 624 P2d 664 (1981), Sup Ct review denied
Where judgment of costs and disbursements in criminal conviction was discharged in bankruptcy and thus not paid, defendant was nonetheless entitled to expunction under this section; to deny relief would conflict with Bankruptcy Code and violate the Supremacy Clause. State v. Gwyther, 57 Or App 34, 643 P2d 1296 (1982)
This section excludes from its benefits expunction for persons convicted of more than one offense even though convictions occurred in same action for separate counts under same statute. State v. Adams, 57 Or App 725, 646 P2d 37 (1982); State v. Spivak, 130 Or App 153, 880 P2d 964 (1994), Sup Ct review denied
Trial court must find that, since conviction, defendant’s behavior was in some respect “contrary to public law” for it to deny motion to set aside conviction under this section. State v. Bomar, 79 Or App 451, 719 P2d 76 (1986)
Statutory history of this section leaves no doubt that legislature chose policy favoring setting aside convictions rather than leaving decision to judicial discretion. State v. Langan, 301 Or 1, 718 P2d 719 (1986)
Under this section, applicant has burden to prove by preponderance of evidence any disputed affirmative fact required, but may invoke presumption that law has been obeyed. State v. Langan, 301 Or 1, 718 P2d 719 (1986)
Where employment benefits claimant believed that conviction had been expunged and accordingly, answered question on employment application concerning previous criminal conviction by stating he had none, such action, though intentional, was taken in good faith and did not constitute misconduct. Muldrew v. Employment Div., 92 Or App 60, 757 P2d 438 (1988)
Although time to appeal had passed, trial court did not lack subject matter jurisdiction when it set aside order setting aside defendant’s conviction since trial courts retain subject matter jurisdiction as matter of inherent power. State v. Mills, 97 Or App 52, 775 P2d 328 (1989)
Conviction for child abuse cannot be set aside after effective date of statutory amendment that expressly prevents convictions for that offense from being set aside and failure to set aside conviction is not violation of prohibition against ex post facto legislation contained in Art. I, Section 21, Oregon Constitution. State v. Burke, 109 Or App 7, 818 P2d 511 (1991)
Second or subsequent motions to set aside conviction are not barred on claim preclusion grounds because this section requires judge to consider new aggregate of facts every time defendant moves to set aside conviction. State v. Stanford, 111 Or App 509, 828 P2d 559 (1992)
Where defendant was convicted of attempted sexual abuse in 1984, circuit court erred in denying defendant’s motion to set aside conviction under this section. State v. Brown, 117 Or App 551, 844 P2d 939 (1993)
Felony driving while revoked, if committed within preceding 10 years, will make defendant ineligible for having later conviction set aside. State v. Roberts, 121 Or App 54, 853 P2d 1345 (1993), Sup Ct review denied
Classification of felony is determined by classification at time expungement is sought, not at time felony was committed. State v. Blankenship, 129 Or App 87, 877 P2d 674 (1994)
Court’s consideration of subsequent convictions in assessing circumstances and behavior of applicant since conviction may include convictions occurring before 10-year period that immediately precedes filing of motion. State v. Cowling, 139 Or App 454, 912 P2d 428 (1996), Sup Ct review denied
“Other official records” refers to unenumerated reports created by public bodies and memorializing or keeping track of information by print or other means, including investigative and arrest reports. State v. K.P., 324 Or 1, 921 P2d 380 (1996)
“In the case” means that occurrences or events referred to or recorded are related to same aggregate set of operative facts that gave rise to record or conviction to be set aside and sealed. State v. K.P., 324 Or 1, 921 P2d 380 (1996)
Order setting aside conviction and sealing record is appealable as special statutory proceeding under [former] ORS 19.010. State v. K.P., 324 Or 1, 921 P2d 380 (1996)
Court lacks authority to effect post-conviction merger of convictions to qualify person to have conviction set aside. State v. Jansen, 197 Or App 251, 105 P3d 928 (2005)
Reclassification of criminally negligent homicide by 2003 amendments to ORS 163.145 does not make pre-2003 conviction ineligible to be set aside. State v. Soreng, 208 Or App 259, 145 P3d 195 (2006)
Where probation is revoked, probation is not part of “sentence” of court, but behavior leading to revocation is part of circumstances and behavior court may consider in determining whether to grant application. State v. Branam, 220 Or App 255, 185 P3d 557 (2008), Sup Ct review denied
For purpose of determining whether person was convicted within 10-year period immediately preceding filing of motion, “any other offense” includes no contest plea to municipal violation. State v. Roberts, 255 Or App 132, 296 P3d 603 (2013)
Defendant moved to set aside forgery conviction and finding of being in contempt of court during 10 year period after conviction did not make defendant ineligible for that motion because contempt finding is not conviction of an offense under subsection (6) of this section. State v. Coughlin, 258 Or App 882, 311 P3d 988 (2013)
Where defendant was convicted in Oregon in December 2006 of drug crime and in March 2007 convicted in Washington for conduct that occurred before Oregon conviction and Washington conviction was vacated in July 2013, defendant’s conduct in Washington cannot be considered under this section because court may consider only conduct occurring after date of relevant Oregon conviction. State v. Larson, 268 Or App 802, 344 P3d 59 (2015)
Where defendant was convicted of two counts of third-degree rape arising from former relationship with victim, defendant is not eligible for expunction under subsection (8)(b) because subsection (6)(b) limits eligibility to individual who has not been convicted of any other offense in 10-year period preceding filing of motion for expungement, including conviction for conduct associated with same criminal episode. State v. Jensen, 279 Or App 323, 379 P3d 792 (2016), Sup Ct review denied
Arrest record may be set aside even if arrest was mistakenly for contempt of court, which is not crime. State v. Simrin, 289 Or App 68, 408 P3d 244 (2017)
Defendant may expunge court judgment indicating convictions for crime of contempt because, even though contempt is not crime and does not result in conviction, court judgment subjects defendant to same stigma as if defendant were convicted of crime. State v. McVein, 305 Or App 525, 471 P3d 796 (2020)
On motion to set aside prior conviction, court may not consider convictions of other offenses within previous 10-year period that were subsequently vacated. State v. Kindred, 314 Or App 280, 499 P3d 835 (2021)
Trial court may examine any information it deems proper and is not limited to examination of charging instruments, pleas or judgments of conviction when determining whether conviction is eligible to be set aside. State v. Sylva, 314 Or App 661, 500 P3d 49 (2021)
Where defendant met initial criteria to have conviction set aside, and state did not object to defendant’s motion, court was required to hold hearing before denying defendant’s motion. State v. Singleton, 317 Or App 49, 503 P3d 499 (2022)
Third-degree assault and recklessly endangering another person, where conduct underlying offenses results from use of motor vehicle, are offenses eligible to be set aside because neither is “traffic offense,” as defined in vehicle code, and thus are not ineligible as traffic offenses under this section. State v. Pohle, 317 Or App 76, 505 P3d 475 (2022)
Law Review Citations
52 WLR 61 (2015)
Attorney General Opinions
Access to police reports and records on juveniles by Oregon Law Enforcement Council, (1974) Vol 36, p 782; inapplicability to pardoned ex-offenders, (1976) Vol 38, p 411
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