Chapter 111 Oregon Laws 1999

Session Law

AN ACT

SB 343

Relating to juvenile records; creating new provisions; and amending ORS 419A.250, 419A.260 and 419A.262.

Be It Enacted by the People of the State of Oregon:

SECTION 1. 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 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) The removal and destruction of all records and all references; and]

[(C)] (B) Where a record is kept by the State Office for Services to Children and Families or the Oregon Youth Authority, either the sealing of such record by the office or the Oregon Youth Authority or, in a multiperson file, the affixing to the front of the file, by the office 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.

(d) "Record" includes a fingerprint or photograph file, report, exhibit or other material which 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 academic record at MacLaren School or Hillcrest School of Oregon;

(B) Material on file with a public agency which 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 if done by an adult would constitute one of the following offenses:

(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) Sexual abuse in the third degree under ORS 163.415;

(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) An attempt to commit a crime listed in this subparagraph other than manslaughter in the second degree and criminally negligent homicide;

(K) Blood samples, autoradiographs 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 181.595 and 181.596.

(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, and the legal effect of an expunction order, 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 2. ORS 419A.262 is amended to read:

419A.262. (1) An expunction proceeding shall be commenced in the county where the subject [child] person resided at the time of the most recent termination.

(2) Upon application of either a person who is the subject of a record or a juvenile department, or upon its own motion, the juvenile court shall order expunction if, after a hearing when the matter is contested, it finds that:

(a) At least five years have elapsed since the date of the person's most recent termination;

(b) Since the date of the most recent termination, the person has not been convicted of a felony or a Class A misdemeanor;

(d) The person is not within the jurisdiction of any juvenile court on the basis of a petition alleging an act or behavior as defined in ORS 419B.100 (1)(a) to (c) and (f) or 419C.005; and

(e) The juvenile department is not aware of any pending investigation of the conduct of the person by any law enforcement agency.

(3) In the case of an application by the juvenile department or of the court acting upon its own motion, expunction shall not be ordered if actual notice of expunction has not been given to the person in accordance with subsection (10) of this section unless the person has reached 21 years of age.

(4) When a person who is the subject of a record kept by a juvenile court or juvenile department reaches 18 years of age, the juvenile court, after a hearing when the matter is contested, shall order expunction if:

(a) The person never has been found to be within the jurisdiction of the court; or

(b) The conditions of subsection (2) of this section have been met.

(5) Expunction shall not be ordered under this section if actual notice of expunction has not been given to the person in accordance with subsection (10) of this section unless the person has reached 21 years of age.

(6) Subsections (4) and (5) of this section shall apply only to cases which result in termination after September 13, 1975.

(7) Notwithstanding subsections (2) and (4) to (6) of this section, upon application of a person who is the subject of a record kept by a juvenile court or juvenile department, upon application of the juvenile department, or upon its own motion, the juvenile court, after a hearing when the matter is contested, may order expunction of all or any part of the person's record if it finds that to do so would be in the best interests of the person and the public. In the case of an application by the juvenile department or of the court acting upon its own motion, expunction shall not be ordered if actual notice of expunction has not been given to the person in accordance with subsection (10) of this section unless the person has reached 21 years of age.

(8) When an expunction proceeding is commenced by application of the person whose records are to be expunged, the person shall set forth as part of the application the names of the juvenile courts, juvenile departments, institutions and law enforcement and other agencies which the person has reason to believe possess an expungible record of the person. The juvenile department shall provide the names and addresses of the juvenile courts, juvenile departments, institutions and law enforcement and other agencies which a reasonable search of department files indicates have expungible records.

(9) When an expunction proceeding is commenced by application of the juvenile department or upon the court's own motion, the application or motion shall set forth the names and addresses of the juvenile courts, juvenile departments, institutions and law enforcement and other agencies which a reasonable search of department files indicates have expungible records and those provided by the subject [child] person.

(10) Notice of an application for expunction under subsections (2) to (7) of this section shall be given to:

(a) The district attorney of the county in which the expunction proceeding is commenced and the district attorney of each county in which the record sought to be expunged is kept; and

(b) The person who is the subject of the record if the person has not initiated the expunction proceeding.

(11) Within 30 days of receiving the notice of application for expunction under subsection (10) of this section, a district attorney shall give written notice of any objection and the grounds therefor to the person whose records are to be expunged and to the juvenile court. If no objection is filed the court may decide the issue of expunction either without a hearing or after full hearing pursuant to subsections (12) to (15) of this section.

(12) When an expunction is pending pursuant to subsections (2) to (7) of this section, the court may proceed with or without a hearing, except that:

(a) The court may not enter an order of expunction without a hearing if a timely objection to expunction has been filed pursuant to subsection (11) of this section; and

(b) The court may not deny an expunction without a hearing if the proceeding is based on an application of the subject.

(13) Notice of a hearing on a pending expunction shall be served on the subject and any district attorney filing a timely objection pursuant to subsection (11) of this section.

(14) The court shall conduct a hearing on a pending expunction in accord with the provisions of ORS 419B.195, 419B.198, 419B.201, 419B.205, 419B.208, 419B.310, 419B.317 and 419B.320. Rules of evidence shall be as in a hearing to establish juvenile court jurisdiction and as defined in ORS 419B.310 (4) and 419C.400 (2). The burden of proof shall be with the party contesting expunction.

(15) At the conclusion of a hearing on a pending expunction, the court shall issue an order granting or denying expunction. Such order shall be a final order of the court for purposes of appeal.

(16) The juvenile court or juvenile department shall send a copy of an expunction order to each agency subject to the order. Upon receipt of a copy of the order, an agency subject thereto shall comply and, within 21 days of the date of receipt, return the copy to the juvenile court or juvenile department with an indorsement indicating compliance.

(17) When all agencies subject to an expunction order have indicated their compliance or in any event no later than six weeks following the date the order was delivered as required by subsection (16) of this section, the juvenile court shall provide the person who is the subject of the record with a copy of the expunction order, a list of complying and noncomplying agencies, and a written notice of rights and effects of expunction. The juvenile court and juvenile department then shall [remove and destroy] expunge forthwith all records which they possess and which are subject to the order, except the original expunction order and [a] the list of complying and noncomplying agencies which shall be preserved under seal.

(18) In addition to those agencies identified in ORS 419A.260 (1)(d), the juvenile, circuit, municipal and justice courts, and the district and city attorneys of this state, are bound by an expunction order of any juvenile court of appropriate jurisdiction in this state issuing an order of expunction.

(19) Upon entry of an expunction order, the contact which is the subject of the expunged record shall not be disclosed by any agency. An agency [which] that is subject to an expunction order shall respond to any inquiry about the contact by indicating that no record or reference concerning the contact exists.

(20) A person who is the subject of a record which has been expunged under this section may assert that the record never existed and that the contact, which was the subject of the record, never occurred without incurring a penalty for perjury or false swearing under the laws of this state.

(21) Juvenile courts, by court rule or by order related to a particular matter, may direct that records concerning a subject [child] person be destroyed. No such records shall be destroyed until at least three years have elapsed after the date of the subject's most recent termination. In the event the record has been expunged, the order of expunction and list of complying and noncomplying agencies shall not be destroyed, but shall be preserved under seal. The destruction herein defined does not constitute expunction.

(22) An order of expunction and list of complying and noncomplying agencies shall be released from confidentiality only on order of the court originating the order of expunction, based on a finding that review of a particular case furthers compliance with the expunction provisions of this chapter.

(23) A subject has a right of action against any person who intentionally violates the confidentiality provisions of this section. In any such proceeding, punitive damages up to an amount of $1,000 may be sought in addition to any actual damages. The prevailing party shall be entitled to costs and reasonable attorney fees.

(24) Intentional violation of the confidentiality provisions of this section by a public employee is cause for dismissal.

(25) A person who intentionally releases all or part of an expunged record commits a Class C misdemeanor.

SECTION 3. ORS 419A.250 is amended to read:

419A.250. (1) A child or youth may be photographed or fingerprinted by a law enforcement agency:

(a) Pursuant to a search warrant;

(b) According to laws concerning adults if the youth has been transferred to criminal court for prosecution;

(c) Upon consent of both the child or youth and the child's or youth's parent after advice that they are not required to give such consent;

(d) Upon request or consent of the child's parent alone if the child is less than 10 years of age, and if the law enforcement agency delivers the original photographs or fingerprints to the parent and does not make or retain any copies thereof; or

(e) By order of the juvenile court.

(2) When a youth is taken into custody under ORS 419C.080, the law enforcement agency taking the youth into custody shall photograph and fingerprint the youth. When a youth is found within the jurisdiction of the juvenile court for the commission of an act that would constitute a crime if committed by an adult, the court shall ensure that the youth's fingerprints have been taken. The law enforcement agency attending upon the court is the agency responsible for obtaining the fingerprints. The law enforcement agency attending upon the court may, by agreement, arrange for another law enforcement agency to obtain the fingerprints on the attending agency's behalf.

(3) Fingerprint and photograph files or records of children shall be kept separate from those of adults, and fingerprints and photographs known to be those of a child shall be maintained on a local basis only and not sent to a central state or federal depository.

(4) Fingerprint and photograph files or records of a child shall be open to inspection only by, or the contents disclosed only to, the following:

(a) Public agencies for use in investigation or prosecution of crimes and of conduct by a child which if committed by an adult would be an offense, provided that a law enforcement agency may provide information to another agency only when the information is pertinent to a specific investigation by that agency;

(b) The juvenile department and the juvenile court having the child before it in any proceeding;

(d) The parties to the proceeding and their counsel; and

(e) The victim or a witness of an act or behavior described under ORS 419C.005 (1) or the victim's parent, guardian, personal representative or subrogee, when necessary to identify the child committing the act or behavior and identifying the apparent extent of the child's involvement in the act or behavior.

(5)(a) Fingerprint and photograph files or records of youths shall be sent to a central state depository in the same manner as fingerprint and photograph files or records of adults. The fingerprint and photograph files or records of a youth sent to a central depository under this subsection shall be open to inspection in the same manner and under the same circumstances as fingerprint and photograph files or records of adults.

(b) A party filing a petition alleging that a youth is within the jurisdiction of the court under ORS 419C.005 shall notify the central state depository of the following:

(A) The filing of a petition alleging that a youth committed an act that if committed by an adult would constitute a crime; or

(B) The dismissal of a petition alleging that a youth committed an act that if committed by an adult would constitute a crime.

(c) The juvenile court shall notify the central state depository of the disposition of a case in which jurisdiction is based on ORS 419C.005.

(d) The Department of State Police shall delete the fingerprint and photograph files or records of a youth from the depository and destroy the files or records relating to the conduct that caused the files or records to be sent to the depository:

(A) One year after receiving the files, if the central state depository has not received notice under paragraph (b) of this subsection;

(B) No later than one year following receipt of a notice of dismissal of a petition under paragraph (b)(B) of this subsection; or

(C) In all other circumstances, no later than five years and 30 days after fingerprint and photograph files or records are sent to the central state depository.

(6) Fingerprint and photograph files and records of a child or youth shall be [destroyed] expunged when the juvenile court orders expunction of a child's or youth's record pursuant to ORS 419A.260 and 419A.262.

(7) The parent or guardian of a missing child may submit a fingerprint card and photograph of the child to a law enforcement agency at the time a missing person report is made. The law enforcement agency may submit the fingerprint file to the Department of State Police Bureau of Criminal Identification. The information shall be entered into the Law Enforcement Data System and the Western Identification Network Automated Fingerprint Identification System.

(8) When fingerprint files or records are submitted under subsection (7) of this section, the Department of State Police shall enter in a special index in the computerized criminal history files the name of the child and the name of the county or agency that submitted the fingerprint file or record.

(9) Fingerprints and other information entered in any data system pursuant to subsection (7) of this section shall be deleted when the child is located.

SECTION 4. The amendments to ORS 419A.250, 419A.260 and 419A.262 by sections 1, 2 and 3 of this 1999 Act apply to expunction orders entered on or after the effective date of this 1999 Act.

Approved by the Governor April 23, 1999

Filed in the office of Secretary of State April 23, 1999

Effective date October 23, 1999

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