Understanding Oregon’s New Expungement LawsNovember 19, 2021
As the law rapidly changes from state to state, particularly with a focus on post-conviction remedy options, it can be hard to keep up. Oregon is one such state that has recently made significant changes to their law affecting a defendant’s ability to set aside, or expunge, a conviction.
The Oregon legislature passed Senate Bill 397 this past August with a nearly unanimous vote. The new law will go into effect on January 1, 2022, amending much of the Oregon Revised Statutes related to expungement.
More specifically, Oregon’s Senate Bill 397 significantly expands eligibility for setting aside criminal records by changing waiting periods for both conviction and non-conviction records, changing the waiting period when your probation was revoked, making set-aside mandatory without an objection from the prosecutor or victim, and by removing the filing fee for a motion to set aside.
Shorter waiting periods for conviction records
Oregon law requires a defendant petitioning for a criminal record set-aside to not have been convicted during a specified waiting period.
Formerly, if you had more than one Oregon conviction on your record, you would be required to wait at least 10 conviction-free years to set aside one of your prior convictions. Come January 1, however, the time you are required to wait to set aside your conviction will simply depend on the level of your conviction.
For instance, if you were trying to set aside a Class B felony conviction, you must wait at least seven years from the date of your conviction or from being released from imprisonment before you may become eligible. Class A felony convictions are generally not eligible to be set aside, but the following are the waiting periods for the rest of the conviction levels:
- Class B Felony: 7 years from conviction or release from imprisonment
- Class C Felony: 5 years from conviction or release from imprisonment
- Class A Misdemeanor: 3 years from conviction or release from imprisonment
- Class B or C Misdemeanor or Violation: 1 year from conviction or release from imprisonment
These changes will substantially shorten the time you are required to wait before petitioning the court for a conviction set-aside. It’s important to remember, though, that a new conviction will restart the waiting period.
Shorter waiting periods for non-conviction records and probation revocations
Oregon did not only change the waiting periods for conviction records with their new bill, however. There are a few situations in which you may petition for a set-aside almost immediately.
First, if there has been no indictment or complaint filed against you, and at least 60 days have passed since the prosecution decided not to pursue a conviction, a person that has been arrested or charged may petition for a conviction set-aside. This situation used to require a one-year waiting period instead of just 60 days.
Second, if your case resulted in an acquittal or a dismissal, you may immediately petition for a set-aside.
When it comes to having your probation revoked, Oregon has also shortened the waiting period. Under the old Oregon expungement law, one would have to wait 10 years from having their probation revoked to petition for a conviction set-aside. With SB 397, now the waiting period when your probation has been revoked is only three years. The only exception is if you’re petitioning for a conviction that requires a longer waiting period than three years, such as a Class C or Class B felony.
Mandatory set aside without objection
Beyond modifying waiting periods for conviction set-asides, Oregon’s SB 397 also makes set-aside mandatory when there is no objection to the motion.
The prosecuting attorney in your conviction, as well as any victim, is given 120 days from the filing of your petition to object to a conviction set-aside. If the court doesn’t receive any objection, they are required to enter an order setting aside your conviction.
Removed filing fees
Finally, the new law expands eligibility even further by removing the petition’s filing fee. In the past, any petition filed for a set-aside was required to be filed with a $281 fee. Now, the law explicitly states that no filing fee is required, opening the door to those who may not have the means to pay such a substantial fee.
While Oregon’s old expungement law was certainly out of date and failed to meet its intended purpose of promoting post-conviction remedies, many of the problems associated with the law are being addressed and corrected. With shortened waiting periods, mandatory set-asides in certain cases, and no filing fee, more people than ever will be able to clear their conviction from their record and gain a fresh start.
Take our free and confidential eligibility test to see if you qualify. Contact us today to learn more about the expungement and set-aside process in Oregon.
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