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 1537
 
                         Senate Bill 305
 
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
  District Attorneys Association)
 
 
                             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.
 
  Provides that convictions for or records of person felonies are
not subject to being set aside or expunged.
 
                        A BILL FOR AN ACT
Relating to judicial modification of certain records; creating
  new provisions; and amending ORS 137.225 and 419A.260.
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, 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) 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 may apply to the court   { - which - }   { + that + }
would have jurisdiction over the crime for which the person was
arrested, for entry of an order setting aside the record of such
arrest. For the purpose of computing the one-year period, time
during which the arrested person has secreted himself or herself
within or without the state shall not be 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 - }   { + that + } 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 - }  { +  a
Class C felony that is classified as a person felony under the
rules of the Oregon Criminal Justice Commission + }.
  (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 - }  { +  that + } 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 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   { - which - }
 { + that + } has been set aside under this section shall be
considered for the purpose of determining whether this paragraph
is applicable; or
  (c) 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) - }  { +  (a) + } 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) - }  { +  (b) + } 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.
  SECTION 2. ORS 419A.260 is amended to read:
  419A.260. (1) As used in this section and ORS 419A.262:
  (a) 'Contact' means any instance in which a person's act or
behavior, or alleged act or behavior,   { - which - }
 { + that + } could result in a juvenile court's assumption of
jurisdiction under ORS 419B.100 (1)(a) to (c) and (f) or 419C.005
comes to the attention of an agency specified in paragraph (d) of
this subsection.
  (b) 'Expunction' means:
  (A) The removal and destruction or sealing of a judgment or
order related to a contact and all records and references; and
  (B) Where a record is kept by the Department of Human Services
or the Oregon Youth Authority, either the sealing of such record
by the department or the Oregon Youth Authority or, in a
multiperson file, the affixing to the front of the file, by the
department or the youth authority, a stamp or statement
identifying the name of the individual, the date of expunction
and instruction that no further reference shall be made to the
material that is subject to the expunction order except upon an
order of a court of competent jurisdiction.
  (c) 'Person' includes a person under 18 years of age.
  (d) 'Record' includes a fingerprint or photograph file, report,
exhibit or other material   { - which - }   { + that + } contains
information relating to a person's contact with any law
enforcement agency or juvenile court or juvenile department and
is kept manually, through the use of electronic data processing
equipment, or by any other means by a law enforcement or public
investigative agency, a juvenile court or juvenile department or
an agency of the State of Oregon. 'Record' does not include:
  (A) A transcript of a student's Youth Corrections Education
Program academic record;
  (B) Material on file with a public agency   { - which - }
 { + that + } is necessary for obtaining federal financial
participation regarding financial assistance or services on
behalf of a person who has had a contact;
  (C) Records kept or disseminated by the Department of
Transportation, State Marine Board and State Fish and Wildlife
Commission pursuant to juvenile or adult order or recommendation;
  (D) Police and court records related to an order of waiver
where the matter is still pending in the adult court or on appeal
 
therefrom, or to any disposition as an adult pursuant to such
order;
  (E) Records related to a support obligation;
  (F) Medical records;
  (G) Records of a proposed or adjudicated termination of
parental rights and adoptions;
  (H) Any law enforcement record of a person who currently does
not qualify for expunction or of current investigations or cases
waived to the adult court;
  (I) Records and case reports of the Oregon Supreme Court and
the Oregon Court of Appeals;
  (J) Any records in cases under ORS 419C.005 in which a juvenile
court found a person to be within the jurisdiction of the court
based upon the person's commission of an act   { - which - }
 { + that + } if done by an adult would constitute one of the
following offenses:
   { +  (i) A person felony under the rules of the Oregon
Criminal Justice Commission; + }
    { - (i) Aggravated murder under ORS 163.095; - }
    { - (ii) Murder under ORS 163.115; - }
    { - (iii) Attempt, solicitation or conspiracy to commit
murder or aggravated murder; - }
    { - (iv) Manslaughter in the first degree under ORS
163.118; - }
    { - (v) Manslaughter in the second degree under ORS
163.125; - }
    { - (vi) Criminally negligent homicide under ORS 163.145; - }
 
    { - (vii) Assault in the first degree under ORS 163.185; - }
    { - (viii) Criminal mistreatment in the first degree under
ORS 163.205; - }
    { - (ix) Kidnapping in the first degree under ORS
163.235; - }
    { - (x) Rape in the third degree under ORS 163.355; - }
    { - (xi) Rape in the second degree under ORS 163.365; - }
    { - (xii) Rape in the first degree under ORS 163.375; - }
    { - (xiii) Sodomy in the third degree under ORS 163.385; - }
    { - (xiv) Sodomy in the second degree under ORS 163.395; - }
    { - (xv) Sodomy in the first degree under ORS 163.405; - }
    { - (xvi) Unlawful sexual penetration in the second degree
under ORS 163.408; - }
    { - (xvii) Unlawful sexual penetration in the first degree
under ORS 163.411; - }
    { - (xviii) - }  { +  (ii) + } Sexual abuse in the third
degree under ORS 163.415; { +  or + }
    { - (xix) Sexual abuse in the second degree under ORS
163.425; - }
    { - (xx) Sexual abuse in the first degree under ORS
163.427; - }
    { - (xxi) Promoting prostitution under ORS 167.012; - }
    { - (xxii) Compelling prostitution under ORS 167.017; or - }
    { - (xxiii) - }  { +  (iii) + } An attempt to commit a crime
listed in this subparagraph   { - other than manslaughter in the
second degree and criminally negligent homicide - } ;
  (K) Blood samples, buccal samples and other physical evidence
and identification information obtained, stored or maintained by
the Department of State Police under authority of ORS 137.076,
181.085 or 419C.473; or
  (L) Records maintained in the Law Enforcement Data System under
ORS 181.592.
  (e) 'Termination' means:
  (A) For a person who is the subject of a record kept by a
juvenile court or juvenile department, the final disposition of a
case by informal means, by a decision not to place the person on
probation or make the person a ward of the court after the person
 
has been found to be within the court's jurisdiction, or by a
discontinuance of probation or of the court's wardship.
  (B) For a person who is the subject of a record kept by a law
enforcement or public investigative agency, a juvenile court or
juvenile department or an agency of the State of Oregon, the
final disposition of the person's most recent contact with a law
enforcement agency.
  (2) The juvenile court or juvenile department shall make
reasonable effort to provide written notice to a child who is
within the court's jurisdiction under ORS 419B.100 (1)(a) to (c)
and (f) or to a youth who is within the court's jurisdiction
under ORS 419C.005, and to the child's or youth's parent, of the
procedures for expunction of a record, the right to counsel under
this chapter, the legal effect of an expunction order and the
procedures for seeking relief from the duty to report as a sex
offender provided under ORS 181.607, at the following times:
  (a) At any dispositional hearing or at the time of entering
into a formal accountability agreement;
  (b) At the time of termination;
  (c) Upon notice to the subject of an expunction pending
pursuant to application of a juvenile department or motion on a
juvenile court; and
  (d) At the time of notice of execution of an expunction order.
  SECTION 3.  { + The amendments to ORS 137.225 and 419A.260 by
sections 1 and 2 of this 2003 Act apply to proceedings to set
aside a conviction or to expunge a juvenile record that are
commenced on or after the effective date of this 2003 Act. + }
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