Expunging Arrests Just Got Easier
by: Abassos • May 16, 2011 • no comments
According to Representative Jules Bailey's recent tweet, the Oregon Legislature just passed his expungement bill: HB 2698. Congrats to OPDS attorney Erik Blumenthal for crafting what will be a new Oregon law once the Governor signs it. The bill is here. It keeps in place the requirement that to expunge an arrest you can't have any other arrests in the last three years. However, it adds the proviso that expunged arrests do not count as an "other arrest". That part of the statute now reads (with the new part bolded):
"(8) The provisions of subsection (1)(b) of this section do not apply to: (a) 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. An arrest that has been set aside under this section may not be considered for the purpose of determining whether this paragraph is applicable."
This amendment is interesting. It allows you to expunge in two hearings what you could not expunge in one. It essentially forces you to sequentially expunge arrests.
Lets say you have a client with a 2010 arrest and an arrest from 2005. Both before this bill and after the bill, the 2010 arrest is eligible for expungement but the 2005 arrest is not. This is because for the 2005 arrest, there is an "other arrest" in the last three years. But for the 2010 arrest there is no "other arrest" in the last three years. If the legislature wanted to delete the three year requirement they could have. But they didn't. Only the 2010 arrest is eligible. Until the 2010 arrest is actually expunged. Then, at that point, the 2005 arrest becomes expungeable.
Alternatively, if you have two arrests in the last three years then neither of them is eligible until one floats out of the three year window. Then you can expunge the newer one. And once the newer one is expunged you can expunge the older one.
The less circuitous way to get to the same goal would simply be to say that the provisions of section 1(b) do not apply to a person who has two or more arrests in the three years preceding the filing of the motion. Then you would make a person eligible who has only one arrest in the last 3 years without wasting additional resources or causing unnecessary delay.
But, having spoken with Erik Blumenthal about the bill, what actually happened is that legislative sausage was made. The original bill was much stronger and included convictions. That bill was watered down, compromises were made, it went in and out of legislative counsel's office a couple times and, voila, you end up with a statute that nobody would have written this way. It's worth keeping in mind the next time you're doing legislative research.
Just to be clear, I don't mean to imply that this new law isn't a good thing. It will certainly change the lives of some of our clients for the better. If you see Jules Bailey you should thank him. He's my rep and I couldn't be happier.
