75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1757
House Bill 2356
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for 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.
Modifies circumstances under which person may expunge criminal
arrests and convictions.
Renames order setting aside conviction as order expunging
conviction.
A BILL FOR AN ACT
Relating to expunction; creating new provisions; and amending ORS
40.355, 137.225, 137.281, 161.725, 181.085 and 181.534 and
section 2, chapter 873, Oregon Laws 2007.
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 { + successfully + } performed the
sentence of the court and whose conviction is described in
subsection (5) of this section { - by motion - } may
{ - apply to - } { + move + } the court where the conviction
was entered for entry of an order { - setting aside - }
{ + expunging + } 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 - } { + move + } the court that would
have jurisdiction over the crime for which the person was
arrested, for entry of an order { - setting aside - } { +
expunging + } the record of the 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 is not included. { + With the consent of the district
attorney, the court may waive the one-year period in the
interests of justice. + }
(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 shall be given to contest the
motion. The fingerprint card with the notation 'motion for
{ - setting aside - } { + expunging + } conviction,' or
'motion for { - setting aside - } { + expunging + } 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 - } { + expunge + } 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) - } { + (10) + } 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 - } { + expunging + } the
conviction, or the arrest record as the case may be, it shall
enter an appropriate order 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 the
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 the order, the conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to its
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, 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, - } { +
conviction or arrest for:
(A) + }A state or municipal traffic offense { + ;
(B) A criminal offense that involves the operation of a motor
vehicle;
(C) A sex crime;
(D) An offense that would constitute child abuse as defined in
ORS 419B.005;
(E) A person crime, if the victim is the defendant's family or
household member as defined in ORS 135.230;
(F) An offense that has serious physical injury or death as an
element, unless the victim as defined in ORS 131.007 consents to
the consideration of the motion by the court; or
(G) Criminally negligent homicide under ORS 163.145 + }.
(b) A person { + :
(A) + } 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 - } { +
expunged + }. Notwithstanding subsection { - (1) - } { +
(3) + } of this section, a conviction that has been { - set
aside - } { + expunged + } under this section shall be
considered for the purpose of determining whether this
{ - paragraph - } { + subparagraph + } is applicable.
{ - (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) - } { + (C) + } { - 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 - } { + expunged + }.
{ + (D) Who is not a citizen or a permanent resident alien of
the United States. + }
{ - (8) - } { + (7)(a) + } The provisions of subsection (1)
of this section apply to convictions and arrests that occurred
before, as well as those that occurred after, September 9, 1971.
There is no time limit for { - making an application - } { +
filing the motion + }.
{ + (b) A person's eligibility to have a conviction or arrest
expunged under this section shall be determined based on the
penalty and classification of the offense at the time of the
application. + }
{ - (9) - } { + (8) + } 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 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) - } { + (9) + } 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
has no other effect on the orders { - setting aside - } { +
expunging + } the conviction or the arrest record.
{ - (11) - } { + (10) + } 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) - } { + (a) + } Attempted assault in the second
degree, ORS 163.175.
{ - (c) - } { + (b) + } Assault in the third degree, ORS
163.165.
{ - (d) - } { + (c) + } Coercion, ORS 163.275.
{ - (e) - } { + (d) + } Criminal mistreatment in the first
degree, ORS 163.205.
{ - (f) - } { + (e) + } Attempted escape in the first
degree, ORS 162.165.
{ - (g) - } { + (f) + } Incest, ORS 163.525, if the victim
was at least 18 years of age.
{ - (h) - } { + (g) + } Intimidation in the first degree,
ORS 166.165.
{ - (i) - } { + (h) + } Attempted kidnapping in the second
degree, ORS 163.225.
{ - (j) Criminally negligent homicide, ORS 163.145. - }
{ - (k) - } { + (i) + } Attempted robbery in the second
degree, ORS 164.405.
{ - (L) - } { + (j) + } Robbery in the third degree, ORS
164.395.
{ - (m) - } { + (k) + } Supplying contraband, ORS 162.185.
{ - (n) - } { + (L) + } Unlawful use of a weapon, ORS
166.220.
{ - (12) - } { + (11) + } As used in this section
{ - , - } { + :
(a) 'Conviction' includes a finding of not guilty by reason of
mental disease or defect excluding criminal responsibility, not
responsible due to a mental disease or defect or guilty except
for insanity.
(b) 'Person crime' means a person felony or person Class A
misdemeanor, as those terms are defined by rule of the Oregon
Criminal Justice Commission.
(c) + } 'Sex crime' has the meaning given that term in ORS
181.594.
SECTION 2. ORS 181.085 is amended to read:
181.085. (1) The Department of State Police is authorized to:
(a) Store blood and buccal samples received under authority of
this section, ORS 137.076, 161.325 and 419C.473 (1) and section
2, chapter 852, Oregon Laws 2001, and other physical evidence
obtained from analysis of such samples;
(b) Analyze such samples for the purpose of establishing the
genetic profile of the donor or otherwise determining the
identity of persons or contract with other qualified public or
private laboratories to conduct that analysis;
(c) Maintain a criminal identification database containing
information derived from blood and buccal analyses;
(d) Utilize such samples to create statistical population
frequency databases, provided that genetic profiles or other such
information in a population frequency database shall not be
identified with specific individuals; and
(e) Adopt rules establishing procedures for obtaining,
transmitting and analyzing blood and buccal samples and for
storing and destroying blood and buccal samples and other
physical evidence and criminal identification information
obtained from such analysis. Procedures for blood and buccal
analyses may include all techniques which the department
determines are accurate and reliable in establishing identity,
including but not limited to, analysis of DNA (deoxyribonucleic
acid), antigen antibodies, polymorphic enzymes or polymorphic
proteins.
(2) If the department is unable to analyze all samples due to
lack of funds, the department shall analyze samples in the
following order:
(a) The department shall first analyze samples from persons
convicted of:
(A) Rape, sodomy, unlawful sexual penetration, sexual abuse,
public indecency, incest or using a child in a display of
sexually explicit conduct, as those offenses are defined in ORS
163.355 to 163.427, 163.465 (1)(c), 163.525 and 163.670;
(B) Burglary in the second degree, as defined in ORS 164.215;
(C) Promoting or compelling prostitution, as defined in ORS
167.012 and 167.017;
(D) Burglary in the first degree, as defined in ORS 164.225;
(E) Assault in the first, second or third degree, as defined in
ORS 163.165, 163.175 and 163.185;
(F) Kidnapping in the first or second degree, as defined in ORS
163.225 and 163.235;
(G) Stalking, as defined in ORS 163.732;
(H) Robbery in the first, second or third degree, as defined in
ORS 164.395, 164.405 and 164.415;
(I) Manslaughter in the first or second degree, as defined in
ORS 163.118 and 163.125;
(J) Criminally negligent homicide, as defined in ORS 163.145;
(K) Aggravated vehicular homicide, as defined in ORS 163.149;
(L) Conspiracy or attempt to commit any felony listed in
subparagraphs (A) to (J) of this paragraph; or
(M) Murder, aggravated murder or an attempt to commit murder or
aggravated murder.
(b) After analyzing samples from persons described in paragraph
(a) of this subsection, the department shall analyze samples from
persons convicted of a felony under ORS 475.840, 475.846 to
475.894, 475.904, 475.906 or 475.914.
(c) After analyzing samples from persons described in
paragraphs (a) and (b) of this subsection, the department shall
analyze samples from persons convicted of any other felony.
(3) Notwithstanding subsection (2) of this section, the
department may analyze a sample from a lower priority before all
samples in higher priorities are analyzed if required in a
particular case for law enforcement purposes.
(4) The department may not transfer or disclose any sample,
physical evidence or criminal identification information
obtained, stored or maintained under authority of this section,
ORS 137.076, 161.325 or 419C.473 (1) except:
(a) To a law enforcement agency as defined in ORS 181.010, a
district attorney or the Criminal Justice Division of the
Department of Justice for the purpose of establishing the
identity of a person in the course of a criminal investigation or
proceeding;
(b) To a party in a criminal prosecution or juvenile proceeding
pursuant to ORS 419C.005 if discovery or disclosure is required
by a separate statutory or constitutional provision; or
(c) To a court or grand jury in response to a lawful subpoena
or court order when the evidence is not otherwise privileged and
is necessary for criminal justice purposes.
(5) The department may not transfer or disclose any sample,
physical evidence or criminal identification information under
subsection (4) of this section unless the public agency or person
receiving the sample, physical evidence or criminal
identification information agrees to destroy the sample, physical
evidence or criminal identification information if notified by
the department that a court has reversed the conviction, judgment
or order that created the obligation to provide the blood or
buccal sample.
(6) Any public agency that receives a sample, physical evidence
or criminal identification information under authority of
subsection (4) of this section may not disclose it except as
provided in subsection (4) of this section.
(7) Notwithstanding subsections (4) and (6) of this section,
any person who is the subject of a record within a criminal
identification database maintained under the authority of this
section may, upon request, inspect that information at a time and
location designated by the department. The department may deny
inspection if it determines that there is a reasonable likelihood
that such inspection would prejudice a pending criminal
investigation. In any case, the department is not required to
allow the person or anyone acting on the person's behalf to test
any blood or buccal sample or other physical evidence. The
department shall adopt procedures governing the inspection of
records and samples and challenges to the accuracy of records.
The procedures shall accommodate the need to preserve the
materials from contamination and destruction.
(8)(a) Whenever a court reverses the conviction, judgment or
order that created an obligation to provide a blood or buccal
sample under ORS 137.076 (2), 161.325 or 419C.473 (1), the person
who provided the sample may request destruction of the sample and
any criminal identification record created in connection with
that sample.
(b) Upon receipt of a written request for destruction pursuant
to this section and a certified copy of the court order reversing
the conviction, judgment or order, the department shall destroy
any sample received from the person, any physical evidence
obtained from that sample and any criminal identification records
pertaining to the person, unless the department determines that
the person has otherwise become obligated to submit a blood or
buccal sample as a result of a separate conviction, juvenile
adjudication or finding of guilty except for insanity for an
offense listed in ORS 137.076 (1). When the department destroys a
sample, physical evidence or criminal identification record under
this paragraph, the department shall notify any public agency or
person to whom the sample, physical evidence or criminal
identification information was transferred or disclosed under
subsection (4) of this section of the reversal of the conviction,
judgment or order.
(c) The department is not required to destroy an item of
physical evidence obtained from a blood or buccal sample if
evidence relating to another person subject to the provisions of
ORS 137.076, 161.325, 419A.260 and 419C.473 (1) and this section
would thereby be destroyed. Notwithstanding this subsection, no
sample, physical evidence or criminal identification record is
affected by an order to { - set aside - } { + expunge + } a
conviction under ORS 137.225.
(9) As used in this section, 'convicted' includes a juvenile
court finding of jurisdiction based on ORS 419C.005.
SECTION 3. ORS 40.355 is amended to read:
40.355. (1) For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime
shall be admitted if elicited from the witness or established by
public record, but only if the crime:
(a) Was punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted; or
(b) Involved false statement or dishonesty.
(2)(a) If a defendant is charged with one or more of the crimes
listed in paragraph (b) of this subsection, and the defendant is
a witness, evidence that the defendant has been convicted of
committing one or more of the following crimes against a family
or household member, as defined in ORS 135.230, may be elicited
from the defendant, or established by public record, and admitted
into evidence for the purpose of attacking the credibility of the
defendant:
(A) Assault in the fourth degree under ORS 163.160.
(B) Menacing under ORS 163.190.
(C) Harassment under ORS 166.065.
(D) Attempted assault in the fourth degree under ORS 163.160
(1).
(E) Attempted assault in the fourth degree under ORS 163.160
(3).
(F) Strangulation under ORS 163.187.
(b) Evidence may be admitted into evidence for the purpose of
attacking the credibility of a defendant under the provisions of
this subsection only if the defendant is charged with committing
one or more of the following crimes against a family or household
member, as defined in ORS 135.230:
(A) Aggravated murder under ORS 163.095.
(B) Murder under ORS 163.115.
(C) Manslaughter in the first degree under ORS 163.118.
(D) Manslaughter in the second degree under ORS 163.125.
(E) Assault in the first degree under ORS 163.185.
(F) Assault in the second degree under ORS 163.175.
(G) Assault in the third degree under ORS 163.165.
(H) Assault in the fourth degree under ORS 163.160.
(I) Rape in the first degree under ORS 163.375 (1)(a).
(J) Sodomy in the first degree under ORS 163.405 (1)(a).
(K) Unlawful sexual penetration in the first degree under ORS
163.411 (1)(a).
(L) Sexual abuse in the first degree under ORS 163.427
(1)(a)(B).
(M) Kidnapping in the first degree under ORS 163.235.
(N) Kidnapping in the second degree under ORS 163.225.
(O) Burglary in the first degree under ORS 164.225.
(P) Coercion under ORS 163.275.
(Q) Stalking under ORS 163.732.
(R) Violating a court's stalking protective order under ORS
163.750.
(S) Menacing under ORS 163.190.
(T) Harassment under ORS 166.065.
(U) Strangulation under ORS 163.187.
(V) Attempting to commit a crime listed in this paragraph.
(3) Evidence of a conviction under this section is not
admissible if:
(a) A period of more than 15 years has elapsed since the date
of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later
date; or
(b) The conviction has been expunged { + under ORS 137.225
or + } by pardon, reversed { - , set aside - } or otherwise
rendered nugatory.
(4) When the credibility of a witness is attacked by evidence
that the witness has been convicted of a crime, the witness shall
be allowed to explain briefly the circumstances of the crime or
former conviction; once the witness explains the circumstances,
the opposing side shall have the opportunity to rebut the
explanation.
(5) The pendency of an appeal therefrom does not render
evidence of a conviction inadmissible. Evidence of the pendency
of an appeal is admissible.
(6) An adjudication by a juvenile court that a child is within
its jurisdiction is not a conviction of a crime.
(7) A conviction of any of the statutory counterparts of
offenses designated as violations as described in ORS 153.008 may
not be used to impeach the character of a witness in any criminal
or civil action or proceeding.
SECTION 4. ORS 137.281, as amended by section 6, chapter 35,
Oregon Laws 2008, is amended to read:
137.281. (1) In any felony case, when the defendant is
sentenced to a term of incarceration, the defendant is deprived
of all rights and privileges described in subsection (3) of this
section from the date of sentencing until:
(a) The defendant is released from incarceration; or
(b) The defendant's conviction is { - set aside - } { +
expunged + }.
(2) Subsection (1) of this section applies to any term of
incarceration, whether the term of incarceration was imposed as a
result of conviction or as a sanction or revocation resulting
from the defendant's violation of the terms and conditions of
probation, parole or post-prison supervision.
(3) The rights and privileges of which a person may be deprived
under this section are:
(a) Holding a public office or an office of a political party
or becoming or remaining a candidate for either office;
(b) Holding a position of private trust;
(c) Acting as a juror; or
(d) Exercising the right to vote.
(4) If the court under subsection (1) of this section
temporarily stays execution of sentence for any purpose other
than probation, the defendant nonetheless is sentenced for
purposes of subsection (1) of this section.
(5) A person convicted of any crime and serving a term of
imprisonment in any federal correctional institution in this
state is deprived of the rights to register to vote, update a
registration or vote in any election in this state from the date
of sentencing until:
(a) The person is discharged or paroled from imprisonment; or
(b) The person's conviction is { - set aside - } { +
expunged + }.
(6) The county clerk or county official in charge of elections
in any county may cancel the registration of any person serving a
term of imprisonment in any federal correctional institution in
this state.
(7) Except as otherwise provided in ORS 10.030, the rights and
privileges withdrawn by this section are restored automatically
upon release from incarceration, but in the case of parole shall
be automatically withdrawn upon a subsequent imprisonment for
violation of the terms of the parole.
SECTION 5. ORS 161.725 is amended to read:
161.725. (1) Subject to the provisions of ORS 161.737, the
maximum term of an indeterminate sentence of imprisonment for a
dangerous offender is 30 years, if because of the dangerousness
of the defendant an extended period of confined correctional
treatment or custody is required for the protection of the public
and one or more of the following grounds exist:
(a) The defendant is being sentenced for a Class A felony and
the defendant is suffering from a severe personality disorder
indicating a propensity toward crimes that seriously endanger the
life or safety of another.
(b) The defendant is being sentenced for a felony that
seriously endangered the life or safety of another, the defendant
has been previously convicted of a felony not related to the
instant crime as a single criminal episode and the defendant is
suffering from a severe personality disorder indicating a
propensity toward crimes that seriously endanger the life or
safety of another.
(c) The defendant is being sentenced for a felony that
seriously endangered the life or safety of another, the defendant
has previously engaged in unlawful conduct not related to the
instant crime as a single criminal episode that seriously
endangered the life or safety of another and the defendant is
suffering from a severe personality disorder indicating a
propensity toward crimes that seriously endanger the life or
safety of another.
(2) As used in this section, 'previously convicted of a felony'
means:
(a) Previous conviction of a felony in a court of this state;
(b) Previous conviction in a court of the United States, other
than a court-martial, of an offense which at the time of
conviction of the offense was and at the time of conviction of
the instant crime is punishable under the laws of the United
States by death or by imprisonment in a penitentiary, prison or
similar institution for a term of one year or more; or
(c) Previous conviction by a general court-martial of the
United States or in a court of any other state or territory of
the United States, or of the Commonwealth of Puerto Rico, of an
offense which at the time of conviction of the offense was
punishable by death or by imprisonment in a penitentiary, prison
or similar institution for a term of one year or more and which
offense also at the time of conviction of the instant crime would
have been a felony if committed in this state.
(3) As used in this section, 'previous conviction of a felony'
does not include:
(a) An offense committed when the defendant was less than 16
years of age;
(b) A conviction rendered after the commission of the instant
crime;
(c) A conviction that is the defendant's most recent conviction
described in subsection (2) of this section, and the defendant
was finally and unconditionally discharged from all resulting
imprisonment, probation or parole more than seven years before
the commission of the instant crime; or
(d) A conviction that was by court-martial of an offense
denounced only by military law and triable only by court-martial.
(4) As used in this section, 'conviction' means an adjudication
of guilt upon a plea, verdict or finding in a criminal proceeding
in a court of competent jurisdiction, but does not include an
adjudication which has been expunged { + under ORS 137.225
or + } by pardon, reversed { - , set aside - } or otherwise
rendered nugatory.
SECTION 6. ORS 181.534 is amended to read:
181.534. (1) As used in this section:
(a) 'Authorized agency' means state government as defined in
ORS 174.111 and the Oregon State Bar. 'Authorized agency ' does
not include:
(A) The Oregon State Lottery Commission or the Oregon State
Lottery; or
(B) A criminal justice agency, as defined in ORS 181.010, that
is authorized by federal law to receive fingerprint-based
criminal records checks from the Federal Bureau of Investigation.
(b) 'Subject individual' means a person from whom an authorized
agency may require fingerprints pursuant to statute for the
purpose of enabling the authorized agency to request a state or
nationwide criminal records check.
(2) An authorized agency may request that the Department of
State Police conduct a criminal records check on a subject
individual for non-criminal justice purposes. If a nationwide
criminal records check of a subject individual is necessary, the
authorized agency may request that the Department of State Police
conduct the check, including fingerprint identification, through
the Federal Bureau of Investigation.
(3) The Department of State Police shall provide the results of
a criminal records check conducted pursuant to subsection (2) of
this section to the authorized agency requesting the check.
(4) The Federal Bureau of Investigation shall return or destroy
the fingerprint cards used to conduct the criminal records check
and may not keep any record of the fingerprints. If the federal
bureau policy authorizing return or destruction of the
fingerprint cards is changed, the Department of State Police
shall cease to send the cards to the federal bureau but shall
continue to process the information through other available
resources.
(5) If the Federal Bureau of Investigation returns the
fingerprint cards to the Department of State Police, the
department shall destroy the fingerprint cards and shall retain
no facsimiles or other material from which a fingerprint can be
reproduced.
(6) If only a state criminal records check is conducted, the
Department of State Police shall destroy the fingerprint cards
after the criminal records check is completed and the results of
the criminal records check provided to the authorized agency and
shall retain no facsimiles or other material from which a
fingerprint can be reproduced.
(7) An authorized agency may conduct criminal records checks on
subject individuals through the Law Enforcement Data System
maintained by the Department of State Police in accordance with
rules adopted, and procedures established, by the Department of
State Police.
(8) An authorized agency and the Department of State Police
shall permit a subject individual for whom a fingerprint-based
criminal records check was conducted to inspect the individual's
own state and national criminal offender records and, if
requested by the subject individual, provide the individual with
a copy of the individual's own state and national criminal
offender records.
(9) Each authorized agency, in consultation with the Department
of State Police, shall adopt rules to implement this section and
other statutes relating to criminal offender information obtained
through fingerprint-based criminal records checks. The rules
shall include but need not be limited to:
(a) Specifying categories of subject individuals who are
subject to criminal records checks.
(b) Specifying the information that may be required from a
subject individual to permit a criminal records check.
(c) Specifying which programs or services are subject to this
section.
(d) Specifying the types of crimes that may be considered in
reviewing criminal offender information of a subject individual.
(e) Specifying when a nationwide fingerprint-based criminal
records check must be conducted. An authorized agency shall
consider the additional cost of obtaining a nationwide
fingerprint-based criminal records check when adopting rules
under this subsection.
(f) If the authorized agency uses criminal records checks for
agency employment purposes:
(A) Determining when and under what conditions a subject
individual may be hired on a preliminary basis pending a criminal
records check; and
(B) Defining the conditions under which a subject individual
may participate in training, orientation and work activities
pending completion of a criminal records check.
(g) Establishing fees in an amount not to exceed the actual
cost of acquiring and furnishing criminal offender information.
(10) The Department of State Police shall verify that an
authorized agency has adopted the rules required by subsection
(9) of this section.
(11) Except as otherwise provided in ORS 181.612, an authorized
agency, using the rules adopted under subsection (9) of this
section, shall determine whether a subject individual is fit to
hold a position, provide services, be employed or be granted a
license, certification, registration or permit, based on the
criminal records check obtained pursuant to this section, on any
false statements made by the individual regarding the criminal
history of the individual and on any refusal to submit or consent
to a criminal records check including fingerprint identification.
If a subject individual is determined to be unfit, then the
individual may not hold the position, provide services, be
employed or be granted a license, certification, registration or
permit.
(12) Except as otherwise provided in ORS 181.612, in making the
fitness determination under subsection (11) of this section, the
authorized agency shall consider:
(a) The nature of the crime;
(b) The facts that support the conviction or pending indictment
or that indicate the making of the false statement;
(c) The relevancy, if any, of the crime or the false statement
to the specific requirements of the subject individual's present
or proposed position, services, employment, license,
certification or registration; and
(d) Intervening circumstances relevant to the responsibilities
and circumstances of the position, services, employment, license,
certification, registration or permit. Intervening circumstances
include but are not limited to:
(A) The passage of time since the commission of the crime;
(B) The age of the subject individual at the time of the crime;
(C) The likelihood of a repetition of offenses or of the
commission of another crime;
(D) The subsequent commission of another relevant crime;
(E) Whether the conviction was { - set aside - } { +
expunged + } and the legal effect of { - setting aside - }
{ + expunging + } the conviction; and
(F) A recommendation of an employer.
(13) An authorized agency and an employee of an authorized
agency acting within the course and scope of employment are
immune from any civil liability that might otherwise be incurred
or imposed for determining, pursuant to subsection (11) of this
section, that a subject individual is fit or not fit to hold a
position, provide services, be employed or be granted a license,
certification, registration or permit. An authorized agency and
an employee of an authorized agency acting within the course and
scope of employment who in good faith comply with this section
are not liable for employment-related decisions based on
determinations made under subsection (11) of this section. An
authorized agency or an employee of an authorized agency acting
within the course and scope of employment is not liable for
defamation or invasion of privacy in connection with the lawful
dissemination of information lawfully obtained under this
section.
(14)(a) Each authorized agency shall establish by rule a
contested case process by which a subject individual may appeal
the determination that the individual is fit or not fit to hold a
position, provide services, be employed or be granted a license,
certification, registration or permit on the basis of information
obtained as the result of a criminal records check conducted
pursuant to this section. Challenges to the accuracy or
completeness of information provided by the Department of State
Police, the Federal Bureau of Investigation and agencies
reporting information to the Department of State Police or
Federal Bureau of Investigation must be made through the
Department of State Police, Federal Bureau of Investigation or
reporting agency and not through the contested case process
required by this paragraph.
(b) A subject individual who is employed by an authorized
agency and who is determined not to be fit for a position on the
basis of information obtained as the result of a criminal records
check conducted pursuant to this section may appeal the
determination through the contested case process adopted under
this subsection or applicable personnel rules, policies and
collective bargaining provisions. An individual's decision to
appeal a determination through personnel rules, policies and
collective bargaining provisions is an election of remedies as to
the rights of the individual with respect to the fitness
determination and is a waiver of the contested case process.
(15) Criminal offender information is confidential. Authorized
agencies and the Department of State Police shall adopt rules to
restrict dissemination of information received under this section
to persons with a demonstrated and legitimate need to know the
information.
(16) If a subject individual refuses to consent to the criminal
records check or refuses to be fingerprinted, the authorized
agency shall deny the employment of the individual, or revoke or
deny any applicable position, authority to provide services,
license, certification, registration or permit.
(17) If an authorized agency requires a criminal records check
of employees, prospective employees, contractors, vendors or
volunteers or applicants for a license, certification,
registration or permit, the application forms of the authorized
agency must contain a notice that the person is subject to
fingerprinting and a criminal records check.
SECTION 7. Section 2, chapter 873, Oregon Laws 2007, is amended
to read:
{ + Sec. 2. + } (1) The Oregon Department of Administrative
Services shall disburse to the Independent Development Enterprise
Alliance moneys appropriated to the department for the purposes
described in subsection (2) of this section.
(2) The Independent Development Enterprise Alliance shall
develop and execute a plan to support community-based programs
that assist underserved individuals in removing legal impediments
to employment by:
(a) Obtaining or reinstating driver licenses;
(b) { - Setting aside - } { + Expunging + } minor criminal
convictions; or
(c) Creating mechanisms to resolve past-due fines, fees and
child support obligations.
(3) The plan may give preference to programs that:
(a) Build constructive relationships between communities and
the criminal justice system;
(b) Promote community service; and
(c) Establish monitoring programs that measure results.
(4) During a biennium for which the Independent Development
Enterprise Alliance receives moneys under subsection (1) of this
section, the Independent Development Enterprise Alliance shall
report on the plan and its implementation once every six months
to:
(a) The judiciary committee in the House of Representatives or
other appropriate legislative committee dealing with criminal
justice issues, if the Legislative Assembly is convened in
regular session; or
(b) The joint legislative interim committee on the judiciary or
other appropriate legislative interim committee dealing with
issues of criminal justice, if the Legislative Assembly is not in
regular session.
SECTION 8. { + The amendments to ORS 137.225 by section 1 of
this 2009 Act apply to motions filed on or after the effective
date of this 2009 Act. + }
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