A tricky bit of Expungement Law

This wikilog article is a draft, it was not published yet.

by: Abassos • August 25, 2010 • no comments

Mostly expungement law is fairly easy. But there are two aspects of determining eligibility that aren't particularly intuitive:

1. If you have one conviction in the last ten years and one or more convictions that are more than ten years old, then the new conviction will be eligible (assuming it otherwise qualifies) but the older convictions will not be eligible. For example, if you have two C felony drug convictions from 1982 and one misdemeanor trespass conviction from 2005, then the 2005 conviction will be eligible but the 1982 convictions will not be eligible. The older ones will be eligible in 2015. ORS 137.225(6)(b). By the way, this same premise holds for arrests and the 3 year period. One arrest in the last 3 years and one or more arrest older than 3 years (with no convictions) means that the new one will be eligible but not the older ones until 3 years from the new one.
2. An expunged conviction is still a conviction for the purpose of the expungement statute. ORS 137.225(6)(b). State v. Hartford, 213 Or App 331 (2007). This prevents a person in the above situation from expunging the new conviction and then, once it's gone, expunging the old convictions. This also applies to arrests. A conviction in the last ten years precludes expungement of any dismissed case or arrest. So you can't expunge a 5 year old conviction and then go on to expunge a dismissed case from last year (or 20 years ago.) That was the situation decided in the Hartford case, above.

It's important to know these things for a regular criminal trial practice. Maybe the client doesn't care at all about the criminal trespass conviction on his record, but if it prevents him (for the next ten years) from expunging his 15 year old felony theft convictions or a 5 year old Rape I dismissal then perhaps it's no longer a deal that the client is willing to take. It's the client's choice but they need to make it knowingly. And this is one of those collateral consequences that is up there in the immigration realm in terms of the consequences to the client.