ORS 419A.262
Expunction proceeding
- notice to victim
Mentioned in
Discrimination at Work
Oregon Bureau of Labor & Industries, August 7, 2023
“Oregon laws protect you from being discriminated against at work. That means you can’t be fired or demoted, paid less, or otherwise treated differently because of certain characteristics about you.”
Bibliographic info
(1)
Intentionally left blank —Ed.(a)
An expunction proceeding under subsection (2) of this section shall be commenced in the county where the subject person resided at the time of the most recent contact.(b)
An expunction proceeding under subsections (3) to (10) of this section shall be commenced in the county where the subject person resided at the time of the most recent termination.(2)
Intentionally left blank —Ed.(a)
A juvenile department shall file with the juvenile court an application for expunction of the records of a person the juvenile department determines meets the criteria under paragraph (b) of this subsection within 90 days following the later of:(A)
The date that the person attains 18 years of age; or(B)
If the subject person was 18 years of age or older on January 2, 2022, the date that the juvenile department receives a request to file the application for expunction from the subject person.(b)
Upon application of either a person who is the subject of a record or a juvenile department, the juvenile court shall order expunction if it finds that:(A)
The subject person had contact with the juvenile department;(B)
The subject person has never been found to be within the jurisdiction of the juvenile court under ORS 419C.005 (Jurisdiction);(C)
There is no petition pending alleging that the subject person is subject to the juvenile court’s jurisdiction under ORS 419C.005 (Jurisdiction);(D)
The subject person has not been waived to criminal court pursuant to a hearing under ORS 419C.349 (Grounds for waiving youth to adult court) or 419C.352 (Grounds for waiving youth under 15 years of age);(E)
The subject person does not have an open referral for a case by informal means; and(F)
The subject person has not had contact with the juvenile department resulting in a conviction under ORS 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court).(c)
If the juvenile court denies the application for expunction under this subsection:(A)
The court must specify in the judgment denying the application for expunction the reason for the denial.(B)
If the juvenile department submitted the application that was denied, the juvenile department shall make reasonable efforts to send to the subject person the following:(i)
Notice of the court’s decision and a copy of the judgment denying the application for expunction; and(ii)
Notice of the person’s right to an attorney, right to file a new application for expunction under this subsection and right to request expunction under subsections (3) to (10) of this section.(C)
The juvenile department or the subject person may file a new application for expunction under this subsection.(3)
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 (Jurisdiction) (1)(a) to (c) and (f) or 419C.005 (Jurisdiction); and(e)
The juvenile department is not aware of any pending investigation of the conduct of the person by any law enforcement agency.(4)
Intentionally left blank —Ed.(a)
Notwithstanding subsection (3) 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 under subsection (14) of this section, shall order expunction if it finds that:(A)
The application requests expunction of only that part of the person’s record that involves a charge, allegation or adjudication based on conduct that if done by an adult would constitute the crime of prostitution under ORS 167.007 (Prostitution); and(B)
The person was under 18 years of age at the time of the conduct.(b)
Except as provided in subsections (14) and (15) of this section, there is no waiting period required before the juvenile court orders expunction under this subsection.(5)
In the case of an application by the juvenile department or of the court acting upon its own motion, expunction may not be ordered under subsection (3) or (4) of this section if actual notice of expunction has not been given to the person in accordance with subsection (13) of this section unless the person has reached 21 years of age.(6)
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 (3) or (4) of this section have been met.(7)
Expunction shall not be ordered under subsections (3) to (10) of this section if actual notice of expunction has not been given to the person in accordance with subsection (13) of this section unless the person has reached 21 years of age.(8)
Subsections (6) and (7) of this section apply only to cases resulting in termination after September 13, 1975.(9)
Notwithstanding subsections (3), (4) and (6) to (8) 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 (13) of this section unless the person has reached 21 years of age.(10)
Notwithstanding ORS 419A.260 (Expunction) (1)(d)(J), a person who has been found to be within the jurisdiction of the juvenile court based on an act that if committed by an adult would constitute:(a)
Rape in the third degree under ORS 163.355 (Rape in the third degree), sodomy in the third degree under ORS 163.385 (Sodomy in the third degree) or sexual abuse in the third degree under ORS 163.415 (Sexual abuse in the third degree), or an attempt to commit those crimes, may apply for an order of expunction under subsections (3) to (10) of this section. The court shall order expunction of the records in the case if, after a hearing when the matter is contested, the court finds that the person:(A)
Meets the requirements of subsection (3) of this section;(B)
Is not required to report as a sex offender; and(C)
Has not been convicted of, found guilty except for insanity of or found to be within the jurisdiction of the juvenile court based on a crime listed in ORS 419A.260 (Expunction) (1)(d)(J), other than the adjudication that is the subject of the motion.(b)
A sex crime that is a Class C felony may apply for an order of expunction under subsections (3) to (10) of this section. The court shall order expunction of the records in the case if, after a hearing when the matter is contested, the court finds that:(A)
The person meets the requirements of subsection (3) of this section;(B)
The person was under 16 years of age at the time of the offense;(C)
The person is:(i)
Less than two years and 180 days older than the victim; or(ii)
At least two years and 180 days older, but less than three years and 180 days older, than the victim and the expunction is in the interests of justice and of benefit to the person and the community;(D)
The victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age;(E)
The victim was at least 12 years of age at the time of the offense;(F)
Each finding described in this paragraph involved the same victim; and(G)
The person has not been convicted of, found guilty except for insanity of or found to be within the jurisdiction of the juvenile court based on a crime listed in ORS 419A.260 (Expunction) (1)(d)(J) or an offense the court is prohibited from setting aside under ORS 137.225 (Order setting aside conviction or record of criminal charge), other than the adjudication that is the subject of the motion.(11)
When an expunction proceeding under subsections (3) to (10) of this section 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.(12)
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.(13)
Intentionally left blank —Ed.(a)
Notice and a copy of an application for expunction under subsections (3) to (10) 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.(14)
Intentionally left blank —Ed.(a)
Within 30 days of receiving the notice of application for expunction under subsection (13) 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.(b)
Except as provided in subsection (15)(c) of this section, if no objection is filed the court may decide the issue of expunction either without a hearing or after full hearing under subsections (15) to (18) of this section.(15)
When an expunction is pending under subsections (3) to (10) 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 under subsection (14) of this section;(b)
The court may not deny an expunction without a hearing if the proceeding is based on an application of the subject; and(c)
The court shall proceed without a hearing if:(A)
No objection is filed under subsection (14) of this section;(B)
The application requests expunction of only that part of the person’s record that involves a charge, allegation or adjudication based on conduct that if done by an adult would constitute the crime of prostitution under ORS 167.007 (Prostitution); and(C)
The person was under 18 years of age at the time of the conduct.(16)
Intentionally left blank —Ed.(a)
Notice of a hearing on a pending expunction shall be served on the subject and any district attorney filing a timely objection under subsection (14) of this section.(b)
When a district attorney receives notice of a hearing for expunction of a record concerning a youth or adjudicated youth 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.(17)
The court shall conduct a hearing on an expunction pending under subsections (3) to (10) of this section in accord with the provisions of ORS 419B.205 (Appointment of counsel for parent or legal guardian), 419B.208 (Other law applicable to appointment of counsel), 419B.310 (Conduct of hearings), 419B.812 (Issuance of summons) to 419B.839 (Required and discretionary summons) and 419B.908 (Witness fees). Rules of evidence shall be as in a hearing to establish juvenile court jurisdiction and as defined in ORS 419B.310 (Conduct of hearings) (3) and 419C.400 (Conduct of hearings) (2). The burden of proof shall be with the party contesting expunction.(18)
Intentionally left blank —Ed.(a)
At the conclusion of a hearing on an expunction pending under subsections (3) to (10) of this section, the court shall issue judgment granting or denying expunction.(b)
The court’s denial of an application for expunction under subsections (2) to (10) of this section does not preclude the subject person from filing an application for expunction under any other applicable subsection of this section.(19)
Intentionally left blank —Ed.(a)
The juvenile court or juvenile department shall send a copy of an expunction judgment to each agency subject to the judgment. Attached to the expunction judgment must be information, to remain confidential, regarding the record to be expunged and the date of the record.(b)
Upon receipt of a copy of the judgment granting an application for expunction under subsection (2) of this section, the agency shall comply and, within 60 days following the date of receipt, return the copy to the juvenile court or the juvenile department with an indorsement indicating compliance.(c)
Upon receipt of a copy of the judgment granting an application for expunction under subsections (3) to (10) of this section, 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.(d)
The juvenile department may, upon an agency’s written request, provide the agency with an extension of time to comply with paragraph (b) or (c) of this subsection. The duration of the extension may not exceed the later of 30 days or, if an audit or grievance under the Interstate Compact for Juveniles relating to the subject person’s records is pending, the date the audit or grievance is concluded.(20)
When all agencies subject to an expunction judgment have indicated their compliance or in any event no later than the later of 90 days following the date the judgment was delivered as required by subsection (19) of this section or, if the juvenile department granted an extension of time under subsection (19)(d) of this section, 90 days following the expiration of the extension of time, 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.(21)
In addition to those agencies identified in ORS 419A.260 (Expunction) (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.(22)
Intentionally left blank —Ed.(a)
Applications for expunction under this section shall be available from the clerk of the court in a form prescribed by the State Court Administrator.(b)
The State Court Administrator shall prescribe the content and form of expunction judgments under this section. The judgment forms must include a place for the court to specify the method of expunction under ORS 419A.260 (Expunction) (1)(b) that applies to a given record. [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; 2012 c.23 §1; 2013 c.390 §2; 2015 c.820 §33; 2021 c.489 §56; 2021 c.585 §6]
Source:
Section 419A.262 — Expunction proceeding; notice to victim, https://www.oregonlegislature.gov/bills_laws/ors/ors419A.html.
Notes of Decisions
“Release” refers to making records available to others in disregard of confidential status. In re Gustafson, 333 Or 468, 41 P3d 1063 (2002)
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