71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 3053
 
                         House Bill 3932
 
Sponsored by COMMITTEE ON JUDICIARY (at the request of Ashland
  Police Department and Dr. Alan Bates)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Allows expunction of juvenile record kept by law enforcement
agency.
 
                        A BILL FOR AN ACT
Relating to expunction of juvenile records; amending ORS
  419A.262.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 419A.262 is amended to read:
  419A.262. (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 shall apply only to
cases which result 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 { + :
  (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.
   { +  (b) Law enforcement agency, the court, after a hearing
when the matter is contested, shall order expunction of all or
any part of the person's record kept by the law enforcement
agency if it finds that:
  (A) The person and the law enforcement agency entered into an
agreement whereby the person agreed to fulfill certain conditions
in exchange for having no petition filed against the person
alleging jurisdiction under ORS 419C.005;
  (B) The person has fulfilled the terms of the agreement;
  (C) At least six months have elapsed since the person
satisfactorily completed the agreement;
  (D) Since the date of the most recent termination, the person
has not been convicted of a felony or a Class A misdemeanor;
  (E) No proceedings seeking a criminal conviction or an
adjudication in a juvenile court are pending against the person;
  (F) 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
  (G) There is no pending investigation of the conduct of the
person by any law enforcement agency. + }
  (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 which 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
which 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 which a reasonable search of
department files indicates have expungible records and those
provided by the subject person.
  (10) Notice 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.
  (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 order of expunction 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) 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.
  (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.317 and 419B.320.
Rules of evidence shall be as in a hearing to establish juvenile
court jurisdiction and as defined in ORS 419B.310 (4) 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 an order granting or denying expunction.
Such order shall be a final order of the court for purposes of
appeal.
  (16) The juvenile court or juvenile department shall send a
copy of an expunction order to each agency subject to the order.
Upon receipt of a copy of the order, an agency subject thereto
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 order have
indicated their compliance or in any event no later than six
weeks following the date the order 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 order, 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 order, except the original expunction order and the list of
complying and noncomplying agencies which shall 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 order of any juvenile court of appropriate
jurisdiction in this state issuing an order of expunction.
  (19) Upon entry of an expunction order, the contact which is
the subject of the expunged record shall not be disclosed by any
agency. An agency that is subject to an expunction order 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 which 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 order of expunction and list of complying and
noncomplying agencies shall not be destroyed, but shall be
preserved under seal. The destruction herein defined does not
constitute expunction.
  (22) An order of expunction and list of complying and
noncomplying agencies shall be released from confidentiality only
on order of the court originating the order of expunction, 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.
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