75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2796
Sponsored by COMMITTEE ON JUDICIARY
CHAPTER ................
AN ACT
Relating to motions to set aside; creating new provisions; and
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, 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 where the 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 that would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside 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.
(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 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
Enrolled House Bill 2796 (HB 2796-A) Page 1
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) - } { + (12) + } 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 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
Enrolled House Bill 2796 (HB 2796-A) Page 2
(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 that has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable.
(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) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to
criminally negligent homicide under ORS 163.145, when that
offense was punishable as a Class C felony. + }
{ - (7) - } { + (8) + } 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) - } { + (9) + } 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.
{ - (9) - } { + (10) + } 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) - } { + (11) + } 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 the conviction or
the arrest record.
Enrolled House Bill 2796 (HB 2796-A) Page 3
{ - (11) - } { + (12) + } 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) - } { + (j) + } Attempted robbery in the second
degree, ORS 164.405.
{ - (L) - } { + (k) + } Robbery in the third degree, ORS
164.395.
{ - (m) - } { + (L) + } Supplying contraband, ORS 162.185.
{ - (n) - } { + (m) + } Unlawful use of a weapon, ORS
166.220.
{ - (12) - } { + (13) + } As used in this section, 'sex
crime' has the meaning given that term in ORS 181.594.
SECTION 2. { + The amendments to ORS 137.225 by section 1 of
this 2009 Act apply to motions to set aside filed on or after the
effective date of this 2009 Act. + }
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Passed by House April 23, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 4, 2009
...........................................................
President of Senate
Enrolled House Bill 2796 (HB 2796-A) Page 4
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2796 (HB 2796-A) Page 5