69th OREGON LEGISLATIVE ASSEMBLY--1997 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 1700

                         House Bill 2392

Sponsored by COMMITTEE ON EDUCATION (at the request of Mr. Arthur
  Rowe)


                             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 court to set aside conviction for any crime under
certain circumstances.

                        A BILL FOR AN ACT
Relating to criminal procedure; 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 wherein that conviction was
entered for entry of an order setting aside the conviction;
 { - or - }
   { +  (b) At any time after the lapse of 10 years from the date
on which a defendant has fully complied with and performed the
sentence of a court imposed upon conviction of any crime, the
defendant by motion may apply to the court wherein the conviction
was entered for entry of an order setting aside the conviction if
the conviction the defendant is seeking to set aside is the
defendant's only conviction; or + }
    { - (b) - }  { +  (c) + } 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 which would
have jurisdiction over the crime for which the person was
arrested, for entry of an order setting aside the record of such
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 shall not be 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 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 person makes a motion under subsection (1)(a)
 { + or (b) + } 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. 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,
 { + from the date of full compliance with and performance of the
sentence + } 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 which 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 such
an 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 such an order, such conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to their
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, which 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 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 which has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable; or
  (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) - }  { +
(1)(c) + } 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 which occurred before, as well as those
which occurred after, September 9, 1971. There shall be no time
limit for making such 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 shall 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 shall have 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.
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