72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 105
 
                         House Bill 2048
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Joint Interim Committee on
  Judiciary)
 
 
                             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 court to set aside conviction or record of arrest for
traffic offense under certain circumstances.
 
                        A BILL FOR AN ACT
Relating to criminal procedure; amending ORS 137.225.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 137.225 is amended to read:
  137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment { + , or 10 years from the
date of pronouncement of judgment if the conviction was for a
traffic offense + }, any defendant who has fully complied with
and performed the sentence of the court and whose conviction is
described in subsection (5) of this section by motion may apply
to the court wherein that conviction was entered for entry of an
order setting aside the conviction; or
  (b)  { + Except as otherwise provided in this paragraph, + } at
any time after the lapse of one year from the date of any arrest,
if no accusatory instrument was filed, or at any time after an
acquittal or a dismissal of the charge, the arrested person
 { + by motion + } may apply to the court which would have
jurisdiction over the crime for which the person was arrested,
for entry of an order setting aside the record of such arrest.
 { + If the arrest was for a traffic offense, the arrested person
by motion may apply to the court as provided in this paragraph at
any time after the lapse of 10 years from the date of the
arrest. + } For the purpose of computing the   { - one-year - }
 { + time + } period, time during which the arrested person has
secreted himself or herself within or without the state
 { - shall not be - }  { +  is not + } included.
  (2)(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity be given to contest the motion.
The fingerprint card with the notation 'motion for setting aside
conviction' or 'motion for setting aside arrest record' as the
case may be, shall be forwarded to the Department of State Police
Bureau of Criminal Identification. Information resulting from the
 
fingerprint search along with the fingerprint card shall be
returned to the prosecuting attorney.
  (b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
  (c) When a person makes a motion under subsection (1)(a) of
this section, the person must pay a fee of $80. The person shall
attach a certified check payable to the Department of State
Police in the amount of $80 to the fingerprint card that is
served upon the prosecuting attorney. The office of the
prosecuting attorney shall forward the check with the fingerprint
card to the Department of State Police Bureau of Criminal
Identification.
  (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. The court shall allow the victim to make a
statement at the hearing. 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:
  (a) A Class C felony, except for criminal mistreatment in the
first degree under ORS 163.205 when it would constitute child
abuse, as defined in ORS 419B.005, or any sex crime.
  (b) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
  (c) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
  (A) Any sex crime; and
  (B) The following crimes when they would constitute child abuse
as defined in ORS 419B.005:
  (i) Criminal mistreatment in the first degree under ORS
163.205; and
  (ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
  (d) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except for
endangering the welfare of a minor under ORS 163.575 (1)(a) when
it would constitute child abuse, as defined in ORS 419B.005, or
any sex crime.
  (e) A violation, whether under state law or local ordinance.
  (f) An offense committed before January 1, 1972, which if
committed after that date would be:
  (A) A Class C felony, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
  (i) Criminal mistreatment in the first degree under ORS
163.205; and
  (ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
  (B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
  (i) Criminal mistreatment in the first degree under ORS
163.205; and
  (ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
  (C) A misdemeanor, except for endangering the welfare of a
minor under ORS 163.575 (1)(a) when it would constitute child
abuse, as defined in ORS 419B.005, or any sex crime.
  (D) A violation.
  (6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
    { - (a) A person convicted of, or arrested for, a state or
municipal traffic offense; - }
    { - (b) - }  { +  (a) + } 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) - }  { +
subsections (3) and (4) + } of this section, a conviction
 { - which - }  { +  that + } has been set aside under this
section shall be considered for the purpose of determining
whether this paragraph is applicable; or
    { - (c) - }  { +  (b) + } A person who at the time the motion
authorized by subsection (1) of this section is pending before
the court is under charge of commission of any crime.
  (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 - }  { +  that + } occurred
before, as well as those   { - which - }  { +  that + } occurred
after, September 9, 1971. There   { - shall be - }  { +  is + }
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 - }  { +  do + } 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 - }  { + has + } 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:
  (a) Abandonment of a child, ORS 163.535.
  (b) Attempted assault in the second degree, ORS 163.175.
  (c) Assault in the third degree, ORS 163.165.
  (d) Coercion, ORS 163.275.
  (e) Criminal mistreatment in the first degree, ORS 163.205.
  (f) Attempted escape in the first degree, ORS 162.165.
  (g) Incest, ORS 163.525, if the victim was at least 18 years of
age.
  (h) Intimidation in the first degree, ORS 166.165.
  (i) Attempted kidnapping in the second degree, ORS 163.225.
  (j) Criminally negligent homicide, ORS 163.145.
  (k) Attempted robbery in the second degree, ORS 164.405.
  (L) Robbery in the third degree, ORS 164.395.
  (m) Supplying contraband, ORS 162.185.
  (n) Unlawful use of a weapon, ORS 166.220.
  (12) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
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