TIP OF THE MONTH ARCHIVES

These tips are intended to educate the reader about areas of the law that make up my practice. This information may be helpful to do-it-yourselfers or may simply increase the reader’s knowledge and understanding of the legal system.

Can I Get My Record of Conviction Expunged?

If you want to read the law itself, go to Oregon Revised Statute 137.225. All the information I am going to provide can be found in that law.

First, your conviction must be for an offense (“offense” means violations, misdemeanors and felonies) that the law allows to be set aside. The following are crimes that cannot be set aside: (1) any traffic offenses; (2) any sex crime (sex crimes are defined in ORS 181.594(2)); (3) criminal mistreatment in the first degree under ORS 163.205 (4) endangering the welfare of a minor if it also constitutes child abuse; (5) a class A or B felony (except for a few exceptions mentioned below).

In addition, the “expunction” statue also allows to be set aside “a crime punishable as either a felony or a misdemeanor, in the discretion of the court.” This reduction of a felony to a misdemeanor applies to only a few A/B felonies. Under ORS 161.705 (reduction of certain felonies to misdemeanors) the following felonies may be reduced to misdemeanors at or after sentencing: delivery of marijuana under ORS 475.864, a class B felony; class B felony possession of marijuana; or the class A felony of racketeering and after successful completion of probation had the crime reduced to a misdemeanor.

In short, as long is your offense is a class C felony or lesser offense (misdemeanor or violation) and is not a traffic crime or on the above list of crimes that cannot be set aside, it is an offense that can be expunged.

Once you have determined that you were convicted for an offense that can be set aside, three years must have elapsed since the date of conviction (not the offense date) and, you must not have been convicted for any other offense (excluding traffic violations) for a period of ten years prior to the filing a the motion to set aside the conviction.

For example, let’s say it is 2008 and you were convicted of possession of less than an ounce of marijuana (a violation) on March 12, 2000, and third degree theft in 2004. Now you want to expunge the theft conviction. You cannot do so because even though it has been more than three years since the theft conviction, it has not been more than ten years since the marijuana possession conviction. Therefore, you have to wait until March 13, 2010, to file your motion to set aside the theft III conviction (because at that time ten years will have passed since the marijuana possession conviction). And, you may as well move to set aside both convictions while you are at it.

Finally, your right to have the court set aside a conviction is not absolute. The trial court has some discretion in deciding whether to allow your motion or deny it. The court may take into consideration your behavior since the conviction and may hear from the victim as to whether the conviction ought to be set aside. However, in practice it is rare for the court to even conduct a hearing as long as all the prerequisites provided for in the statute have been met and the District Attorney’s office has not filed an objection.

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