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 1545
 
                         Senate Bill 397
 
Sponsored by Senator PROZANSKI, Representative GELSER (at the
  request of Ed Spinney)
 
 
                             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 person arrested for state or municipal traffic offense
to have arrest record expunged in certain circumstances.
 
                        A BILL FOR AN ACT
Relating to setting aside arrests for traffic offenses; 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
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 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, - }   { + A
conviction 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) The provisions of subsection (1)(b) of this section do not
apply to { + :
  (a) + } 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.
   { +  (b) An arrest for driving while under the influence of
intoxicants if the charge is dismissed as a result of the
person's successful completion of a diversion agreement described
in ORS 813.200. + }
  (8) 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) 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) 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.
  (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.
  SECTION 2.  { + The amendments to ORS 137.225 by section 1 of
this 2009 Act apply to motions filed under ORS 137.225 on or
after the effective date of this 2009 Act. + }
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