2007 ORS 137.225¹
Order setting aside conviction or record of arrest
  • fees
  • prerequisites
  • limitations

(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 (Criminal mistreatment in the first degree) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), 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 (Definitions):

(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and

(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (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 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), 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 (Definitions):

(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and

(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (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 (Definitions):

(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and

(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).

(C) A misdemeanor, except for endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), 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) 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 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 (Abandonment of a child).

(b) Attempted assault in the second degree, ORS 163.175 (Assault in the second degree).

(c) Assault in the third degree, ORS 163.165 (Assault in the third degree).

(d) Coercion, ORS 163.275 (Coercion).

(e) Criminal mistreatment in the first degree, ORS 163.205 (Criminal mistreatment in the first degree).

(f) Attempted escape in the first degree, ORS 162.165 (Escape in the first degree).

(g) Incest, ORS 163.525 (Incest), if the victim was at least 18 years of age.

(h) Intimidation in the first degree, ORS 166.165 (Intimidation in the first degree).

(i) Attempted kidnapping in the second degree, ORS 163.225 (Kidnapping in the second degree).

(j) Criminally negligent homicide, ORS 163.145 (Criminally negligent homicide).

(k) Attempted robbery in the second degree, ORS 164.405 (Robbery in the second degree).

(L) Robbery in the third degree, ORS 164.395 (Robbery in the third degree).

(m) Supplying contraband, ORS 162.185 (Supplying contraband).

(n) Unlawful use of a weapon, ORS 166.220 (Unlawful use of weapon).

(12) As used in this section, "sex crime" has the meaning given that term in ORS 181.594 (Definitions for ORS 181.595, 181.596, 181.597 and 181.603). [1971 c.434 §2; 1973 c.680 §3; 1973 c.689 §1a; 1973 c.836 §265; 1975 c.548 §10; 1975 c.714 §2; 1977 c.286 §1; 1983 c.556 §1; 1983 c.740 §17; 1987 c.320 §31; 1987 c.408 §1; 1987 c.864 §6; 1989 c.774 §1; 1991 c.830 §6; 1993 c.546 §98; 1993 c.664 §2; 1995 c.429 §9; 1995 c.743 §1; 1999 c.79 §1; 2007 c.71 §35]

Notes of Decisions

Nothing in this sec­tion indicates the legislature intended that the courts should examine straight felony con­vic­­tions preceding the 1971 code to see if they might have fit as either felonies or misdemeanors if committed after the effective date of the code. State v. Thompson, 20 Or App 61, 530 P2d 532 (1975)

State has standing to ap­peal expunc­tion order under statute governing ap­peals from special statutory pro­ceed­ings. State v. Young, 24 Or App 5, 544 P2d 179 (1976), Sup Ct review denied

Failure to perform duties of driver at scene of accident which resulted in death of per­son is state traffic of­fense and therefore not expungeable. State v. Greer, 26 Or App 605, 553 P2d 1087 (1976)

Notwithstanding that three con­vic­­tions of defendant had been set aside for unconstitu­tionality of statute on which based, expunc­tion of records thereof was available under this sec­tion as it makes no distinc­tion between valid con­vic­­tions and those sub­se­quently declared invalid. State v. Hammond, 34 Or App 893, 580 P2d 556 (1978)

This sec­tion does not give the courts authority to expunge or seal arrest records of per­sons arrested but not convicted of any crime. Springer v. State, 50 Or App 5, 621 P2d 1213 (1981), Sup Ct review denied

Providing remedy of expunc­tion and sealing of records for certain convicted per­sons under this sec­tion, while providing no comparable remedy to unconvicted per­sons was not denial of equal protec­tion. Springer v. State, 50 Or App 5, 621 P2d 1213 (1981), Sup Ct review denied

Defendant in civil defama­tion case could rely on fact as de­fense that con­vic­­tion actually occurred notwithstanding that this sec­tion entitles convicted per­son to deny con­vic­­tion. Bahr v. Statesman Journal, 51 Or App 177, 624 P2d 664 (1981), Sup Ct review denied

Where judg­ment of costs and disburse­ments in crim­i­nal con­vic­­tion was discharged in bankruptcy and thus not paid, defendant was nonetheless entitled to expunc­tion under this sec­tion; to deny relief would conflict with Bankruptcy Code and violate the Supremacy Clause. State v. Gwyther, 57 Or App 34, 643 P2d 1296 (1982)

This sec­tion excludes from its benefits expunc­tion for per­sons convicted of more than one of­fense even though con­vic­­tions occurred in same ac­tion for separate counts under same statute. State v. Adams, 57 Or App 725, 646 P2d 37 (1982); State v. Spivak, 130 Or App 153, 880 P2d 964 (1994), Sup Ct review denied

Trial court must find that, since con­vic­­tion, defendant's behavior was in some respect "contrary to public law" for it to deny mo­tion to set aside con­vic­­tion under this sec­tion. State v. Bomar, 79 Or App 451, 719 P2d 76 (1986)

Statutory history of this sec­tion leaves no doubt that legislature chose policy favoring setting aside con­vic­­tions rather than leaving decision to judicial discre­tion. State v. Langan, 301 Or 1, 718 P2d 719 (1986)

Under this sec­tion, applicant has burden to prove by preponderance of evidence any disputed af­firm­a­tive fact re­quired, but may invoke presump­tion that law has been obeyed. State v. Langan, 301 Or 1, 718 P2d 719 (1986)

Where employ­ment benefits claimant believed that con­vic­­tion had been expunged and accordingly, answered ques­tion on employ­ment applica­tion concerning pre­vi­ous crim­i­nal con­vic­­tion by stating he had none, such ac­tion, though inten­tional, was taken in good faith and did not constitute miscon­duct. Muldrew v. Employ­ment Div., 92 Or App 60, 757 P2d 438 (1988)

Although time to ap­peal had passed, trial court did not lack subject matter jurisdic­tion when it set aside order setting aside defendant's con­vic­­tion since trial courts retain subject matter jurisdic­tion as matter of inherent power. State v. Mills, 97 Or App 52, 775 P2d 328 (1989)

Convic­tion for child abuse cannot be set aside after effective date of statutory amend­ment that expressly prevents con­vic­­tions for that of­fense from being set aside and failure to set aside con­vic­­tion is not viola­tion of pro­hi­bi­­tion against ex post facto legisla­tion contained in Art. I, Sec­tion 21, Oregon Constitu­tion. State v. Burke, 109 Or App 7, 818 P2d 511 (1991)

Second or sub­se­quent mo­tions to set aside con­vic­­tion are not barred on claim preclusion grounds because this sec­tion requires judge to consider new aggregate of facts every time defendant moves to set aside con­vic­­tion. State v. Stanford, 111 Or App 509, 828 P2d 559 (1992)

Where defendant was convicted of at­tempted sexual abuse in 1984, circuit court erred in denying defendant's mo­tion to set aside con­vic­­tion under this sec­tion. State v. Brown, 117 Or App 551, 844 P2d 939 (1993)

Felony driving while revoked, if committed within preceding 10 years, will make defendant ineligible for having later con­vic­­tion set aside. State v. Roberts, 121 Or App 54, 853 P2d 1345 (1993), Sup Ct review denied

Classifica­tion of felony is determined by classifica­tion at time expunge­ment is sought, not at time felony was committed. State v. Blankenship, 129 Or App 87, 877 P2d 674 (1994)

Court's considera­tion of sub­se­quent con­vic­­tions in assessing circumstances and behavior of applicant since con­vic­­tion may include con­vic­­tions occurring before 10-year period that immediately precedes filing of mo­tion. State v. Cowling, 139 Or App 454, 912 P2d 428 (1996), Sup Ct review denied

"Other official records" refers to unenumerated reports created by public bodies and memorializing or keeping track of in­for­ma­­tion by print or other means, including investigative and arrest reports. State v. K.P., 324 Or 1, 921 P2d 380 (1996)

"In the case" means that occurrences or events referred to or recorded are related to same aggregate set of operative facts that gave rise to record or con­vic­­tion to be set aside and sealed. State v. K.P., 324 Or 1, 921 P2d 380 (1996)

Order setting aside con­vic­­tion and sealing record is ap­pealable as special statutory pro­ceed­ing under ORS 19.010 (renumbered ORS 19.205 (Appealable judgments and orders)). State v. K.P., 324 Or 1, 921 P2d 380 (1996)

Court lacks authority to effect post-con­vic­­tion merger of con­vic­­tions to qualify per­son to have con­vic­­tion set aside. State v. Jansen, 197 Or App 251, 105 P3d 928 (2005)

Reclassifica­tion of crim­i­nally neg­li­gent hom­i­cide by 2003 amend­ments to ORS 163.145 (Criminally negligent homicide) does not make pre-2003 con­vic­­tion ineligible to be set aside. State v. Soreng, 208 Or App 259, 145 P3d 195 (2006)

Atty. Gen. Opinions

Access to police reports and records on juveniles by Oregon Law Enforce­ment Council, (1974) Vol 36, p 782; inap­pli­ca­bil­i­ty to pardoned ex-offenders, (1976) Vol 38, p 411

1 Legislative Counsel Committee, CHAPTER 137—Judgment and Execution; Parole and Probation by the Court, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­137.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 137, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­137ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.