§ 33.2 Setting Aside a Conviction or Record of Arrest Under Ors 137.225

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 33.2 SETTING ASIDE A CONVICTION OR RECORD OF ARREST UNDER ORS 137.225

§ 33.2-1 Nomenclature; Purpose

The relief available under ORS 137.225 is commonly, albeit inaccurately, known as expungement. See Leong's, Inc. v. Oregon State Lottery Commission, 142 Or App 460, 464 n 4, 921 P2d 988 (1996) (recognizing the term expunged as a convenient but imprecise shorthand for the statutory process set forth in ORS 137.225).

The term expungement historically referred to the physical destruction of the record of a criminal conviction. Black's Law Dictionary 702 (10th ed 2014). A more correct term would be expunction, which broadly refers to any procedure in which an adjudication of guilt is rendered nugatory, such as an executive pardon, a judicial reversal, or a special statutory proceeding for setting aside a conviction. See, e.g., ORS 419A.260(1)(b) (defining expunction in the context of juvenile proceedings); see also OEC 609(3)(b) (ORS 40.355(3)(b)) (evidence of a prior conviction is not admissible for impeachment purposes if that conviction "has been expunged by pardon, reversed, set aside or otherwise rendered nugatory"); ORS 161.725(4) ("conviction" for purposes of dangerous-offender sentencing "does not include an adjudication which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory"). Neither of these terms, however, accurately describes the nature of the relief afforded by ORS 137.225, and both terms are therefore disfavored. State v. Langan, 301 Or 1, 4 n 3, 718 P2d 719 (1986) (ORS 137.225 "does not call for expunging anything from the record of conviction but for sealing the record"). Because no such destruction of records takes place pursuant to the statute, the word expunge should not be used in the pleadings or in the order itself. State v. Burke, 109 Or App 7, 9 n 1, 818 P2d 511 (1991), rev den, 312 Or 589 (1992); State v. Bomar, 79 Or App 451, 453 n 1, 719 P2d 76 (1986) (referring to the motion "as one to 'set aside' a conviction").

The purpose of this procedure is to further the person's rehabilitation and to remove the stigma attached to past arrests or past convictions. State v. K.P., 324 Or 1, 5-6, 921 P2d 380 (1996); State v. Gwyther, 57 Or App 34, 37, 643 P2d 1296 (1982); State v. Hammond, 34 Or App 893, 897, 580 P2d 556 (1978). There is no statute of limitations for an application to set aside a conviction or arrest. ORS 137.225(9). Claim preclusion does not apply to motions to set aside the records of arrests or convictions; "the judge must consider a new aggregate of facts every time that a defendant moves to set aside a conviction." State v. Stanford, 111 Or App 509, 512, 828 P2d 459 (1992).

A person who is found to be guilty except for insanity (GEI) pursuant to ORS 161.295 is not criminally responsible for the person's conduct. State v. Counts, 311 Or 616, 621-22, 816 P2d 1157 (1991). See generally, chapter 15 (mental illness and incapacity). A verdict of GEI does not constitute a criminal conviction subject to ORS 137.225, because the resulting judgment does not impose a sentence. State v. Gile, 161 Or App 146, 153, 985 P2d 199 (1999). A separate statute, ORS 137.223, authorizes an individual to move to set aside a judgment of GEI. The eligibility requirements and procedures parallel those in ORS 137.225. ORS 137.223(2)(a).

Although contempt is not a crime, a defendant can also move to set aside the record of a finding of contempt under ORS 137.225(5)(e).

§ 33.2-2 Overview of the Process

After the passage of the specified period of time (see § 33.2-3(a), § 33.2-4), a person may apply by motion to the appropriate court for an order setting aside the conviction or the record of arrest. ORS 137.225(1).

A copy of the motion must be served on the office of the attorney who prosecuted or had authority to prosecute the charge. ORS 137.225(2)(a).

The prosecutor may object to the motion if it involves a conviction but cannot contest a motion to set aside the record of an arrest. ORS 137.225(2)(a). If the prosecutor does not object, the court must grant the motion. ORS 137.225(3)(b). If the prosecutor objects, the court holds a hearing and determines whether setting aside the conviction is warranted based on the standards discussed below. ORS 137.225(3)(a). If the motion is allowed, the court enters an appropriate order containing the requisite findings and setting aside the conviction. ORS 137.225(3). The court also must include an order sealing the record of conviction and other official records. ORS 137.225(3).

See § 33.3 regarding the process for setting aside a qualifying marijuana conviction under ORS 475C.397.

§ 33.2-3 Motion to Set Aside a Conviction under ORS 137.225

ORS 137.225(1)(a) to (b) detail the time at which a person convicted of an offense becomes eligible to set aside the person's conviction. ORS 137.225(1)(a) provides as follows:

At any time after the person becomes eligible as described in paragraph (b) of this subsection, any person convicted of an offense who has fully complied with and performed the sentence of the court for the offense, 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. A person who is still under supervision as part of the sentence for the offense that is the subject of the motion has not fully complied with or performed the sentence of the court.

The person must have "fully complied with and performed the sentence of the court for the offense" that the person seeks to set aside. ORS 137.225(1)(a). That includes completing any term of supervision imposed by the court. See § 33.2-3(a) (time for filing the motion), § 33.2-3(b) to § 33.2-3(b)(3) (eligibility for filing).

§ 33.2-3(a) Time for Filing the Motion

The requisite period of time must have elapsed since the conviction or release before a defendant can file a motion to set aside a conviction under ORS 137.225. ORS 137.225(1)(a)-(b). The time periods are assigned based on the severity of conviction:

(b) A person is eligible to file a motion under [ORS 137.225(1)(a)]:
(A) For a Class B felony, seven years from the date of conviction or the release of the person from imprisonment for the conviction sought to be set aside, whichever is later.
(B) For a Class C felony, five years from the date of conviction or the release of the person from imprisonment for the conviction sought to be set aside, whichever is later.
(C) For a Class A misdemeanor, three years from the date of conviction or the release of the person from imprisonment for the conviction sought to be set aside, whichever is later.
(D) For a Class B or Class C misdemeanor, a violation or the finding of a person in contempt of court, one year from the date of conviction or finding or the release of the person from imprisonment for the conviction or finding sought to be set aside, whichever is later.

ORS 137.225(1)(b).

A defendant has not "fully complied with and performed the sentence of the court" for the offense until that defendant is neither incarcerated nor under supervision "as part of the sentence for the offense" that the defendant seeks to set aside. ORS 137.225(1)(a).

Notwithstanding ORS 137.225(1)(b), a defendant who was sentenced to probation for the offense and whose sentence of probation subsequently was revoked must wait either three years from the date of revocation or the standard waiting period for the offense level, whichever is longer, before being eligible for an order setting aside the record of conviction. ORS 137.225(1)(e).

PRACTICE TIP

Because a defendant is eligible to move to set aside a misdemeanor much sooner than a felony, attorneys should seek misdemeanor treatment of eligible felonies under ORS 161.705 at either the time of conviction or upon completion of probation.

NOTE

Unlike the offenses described in ORS 137.225, a "qualifying marijuana conviction" may be set aside immediately upon the defendant's completion of the sentence of the court, including payment of financial obligations. ORS 475C.397 (creating modified procedure); ORS 475B.301 (listing qualifying types of conduct). Those qualifying convictions are discussed further in § 33.3, but include only convictions based on conduct that occurred before July 1, 2015. ORS 475C.397(7)(b)(B). The prosecuting attorney may object only on the grounds that the defendant's conviction is not a qualifying type of conduct.

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