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When Am I Eligible for Expungement?

Stanford Student Being Escorted by Several Police Officers

When Am I Eligible for Expungement?

Stanford Student Being Arrested by Several Officers

People seeking Oregon Expungements must stay out of trouble for a certain length of time. Unfortunately, this timing issue is—or can be—the most complicated and confusing part of the adult Oregon expungement statute.

(For background information on the Oregon expungement framework and what determines eligibility, see Essent Law’s Oregon Expungement Guide, Parts 1–4, starting here with Part 1).

Here’s the complex part of the expungement statute, ORS 137.225(6)(b) (2013), which reads:

“Notwithstanding subsection (5) of this section, the provisions of subsection (1) [Expungement of Convictions and Arrests] of this section do not apply to:

(b) A person convicted, within the 10-year period immediately preceding the filing of the motion pursuant to subsection (1) of this section, of any other offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the arrest or conviction that is sought to be set aside. Notwithstanding subsection (1) of this section, a conviction that has been set aside under this section shall be considered for the purpose of determining whether this paragraph is applicable.

The upshot is that Oregon expungement eligibility will, in the vast majority of cases be either: (i) one year; (ii) three years; (iii) ten years; or (iv) 20 years for class-B felonies.Here are the five possible outcomes or “personas” for people seeking Oregon expungement:

1. The Isolated Arrest — You have only one arrestever–on your record. You must wait one year after the arrest—or until the D.A. or court dismisses the charges, which can sometimes be sooner than one year.1)ORS 137.225(1)(b).

2.1. If you have multiple arrests, you must wait three years without any other arrests. Three years of “good behavior”.2)ORS 137.225(9)(a) (2013).

2.2. If you have only one convictionever—on your record, you must wait three years.3)ORS 137.225(1)(a).

3. If you have multiple convictions, you cannot even apply to have your record expunged until you can say that you’ve only had one conviction in the last ten years.4)ORS 137.225(6)(b).

4. If you have a class-B felony conviction, you must wait 20 years.5)ORS 137.225(8)(a).

5. It’s pretty rare, but if you have only one arrest, and you got that arrest dismissed (discharged) through a diversion program that was not a DUI diversion, you may be able to expunge the arrest immediately after you’ve completed diversion.6)See ORS 137.225(9)(a) Contact an Oregon expungement lawyer about this. See also Essent Law’s article, Can I Expunge my Diversion?

Let’s make this more concrete. Here are a few brief scenarios to illustrate how Oregon expungement works:

1. Case One – The guy who has turned it around but who slipped up recently

Rob had three (3) convictions on his record nine (9) years ago. He has stayed out of trouble until about five (5) months ago, when he got popped for carrying a little bit of marijuana on his way home from a concert. He pleaded “no contest” to this “violation” (as opposed to a misdemeanor or felony), and paid a fine. That was it.

He goes to expunge his record. He thinks he’s eligible because he pled no contest (nolo contendere) and this is only a violation, not a misdemeanor, and surely not a felony. He thinks that perhaps because he pled no contest he was not technically “convicted”, or at least not convicted of a “crime”.

The New Stuff Can Be Expunged in Three Years, The Old Stuff Not for Another 10 Years — Rob just delayed when he can expunge the “bunch” of convictions from nine years ago. He will be eligible to expunge his recent weed conviction7)The new marijuana legalization law won’t change that Rob was convicted of “a crime”, unless the bill expressly provides that convictions are retroactively void, which is doubtful.) in three years. But he won’t be eligible to expunge his entire criminal record—and the stuff he is really concerned about—until 10 years after his latest, most recent conviction.

Why? Because only after ten years since his later conviction, he will be able to truthfully say that “I’ve been convicted of only “one other offense” in the last ten years.” You see? In contrast, if he tries to expunge the old stuff, he must say he was convicted of “one other offense” during the last 10 years because he was convicted of the marijuana violation. This kiboshes his eligibility and knocks him out of the box. Lastly, if he tries to expunge the “new stuff”, he can truthfully say that he has not been convicted of any other offense in the last 10 years (all he was convicted of was the one weed offense that he’s trying to expunge). It all hinges on the “any other” language in the statute—two little words and results in a difference of a decade.

But, ten years is a long time. By that time, at least 20 years have passed since the “bunch” of conditions and the bulk of the embarrassing, prejudicial rap sheet. So the expungement relief is not nearly as useful to him, his livelihood, and career as it could’ve been. It’s a big hit.

Is this fair? It’s odd that Oregon lawmakers apparently “intended” that people with a bad past, but who have picked up a minor charge recently, could expunge that recent conviction within three years, but cannot expunge all the “old stuff” for another 10 years. Yet, the legislature and courts have made clear that the expungement statute is essentially a favor (a grace) the state of Oregon is giving, not a full-blown right.Therefore, it’s quite reasonable for the legislature to insist that those it grants expungement to are worthy candidates and have truly turned things around.

At any rate, that’s the law for the time being and unlikely to change in the short term.

2. Case One with a Twist — Rob lawyers up and gets the charges dropped

Same as number one, except that Rob lawyers up, and the attorney either gets the charge dropped (the D.A. declines to prosuecte or agrees to have the case dismissed) or Rob is acquitted. So he has no conviction, just a mere arrest. What then?

Rob is technically eligible to expunge his old convictions. However, he has hurt his chances of expunging those convictions because he has given the D.A. more solid ground for objecting to his motion under another part of the Oregon expungement law. Moreover, the judge now has grounds for denying the motion because of this recent unlawful “bad behavior”.

This is not to say that Rob shouldn’t petition the court to expunge his record or that he won’t ultimately get his expungement, just that he has gotten in his own way. Rob is well advised to at least consult with an Oregon expungement attorney—one who can anticipate who the judge might be and how the judge might rule will be of great value in informing Rob how he should best proceed and his chances of success.

Don’t hesitate to give Essent Law a call or an email regarding your or a loved one’s Oregon expungement. We’re friendly, and help expungement clients all the time. No scary lawyer stuff here. We’d love to talk to you. Contact us today.

Essent Law offers offers Oregon expungement attorney services in Marion, Multnomah, Washington, Clackamas, Lane, and other counties, including the cities of Portland, Salem, and Eugene and surrounding areas.

IMG_3149” by John Martinez Pavgila under license CC BY 2.0. No changes were made to the photograph, except the name of the file as found on this website. The use in this blog does not imply that the photographer-licensor endorses the views here.

References   [ + ]

1. ORS 137.225(1)(b).
2. ORS 137.225(9)(a) (2013).
3. ORS 137.225(1)(a).
4. ORS 137.225(6)(b).
5. ORS 137.225(8)(a).
6. See ORS 137.225(9)(a
7. The new marijuana legalization law won’t change that Rob was convicted of “a crime”, unless the bill expressly provides that convictions are retroactively void, which is doubtful.

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