Bill Text: OR HB2961 | 2013 | Regular Session | Introduced
Bill Title: Relating to orders setting aside convictions; declaring an emergency.
Spectrum: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2961 Detail]
Download: Oregon-2013-HB2961-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 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 2986
House Bill 2961
Sponsored by COMMITTEE ON JUDICIARY
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 conviction for certain traffic offenses to be set aside
if committed while under 18 years of age.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to orders setting aside convictions; amending ORS
137.225; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 137.225, as amended by section 4, chapter 70,
Oregon Laws 2012, 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 where the conviction was entered
for entry of an order setting aside the conviction; or
(b) 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 that would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of the arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without this
state is not included.
(2)(a) A copy of the motion and a full set of the
{ - defendant's - } { + applicant'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 shall 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. Information
resulting from the fingerprint search along with the fingerprint
card shall be returned to the prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
(c) When { - a person - } { + an applicant + } makes a
motion under subsection (1)(a) of this section, the
{ - person - } { + applicant + }must pay a fee of $80 to the
Department of State Police. The { - person - } { +
applicant + } 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.
(d) In addition to the fee established under paragraph (c) of
this subsection, when { - a person - } { + an applicant + }
makes a motion under subsection (1)(a) of this section the
{ - person - } { + applicant + } must pay the filing fee
established under ORS 21.135.
(3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
the court deems proper. The court shall allow the victim to make
a statement at the hearing. Except as otherwise provided in
subsection (14) of this section, if the court determines that the
circumstances and behavior of the applicant from the date of
conviction, 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, the court
shall enter an appropriate order that 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 Department of State
Police and further identified as to Department of State Police
number or submitting agency number. Upon the entry of the 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 - } { + applicant + } has been in the custody of
the Department of Corrections. Upon entry of the order, the
conviction, arrest or other proceeding shall be deemed not to
have occurred, and the applicant may answer accordingly any
questions relating to its occurrence.
(5) The provisions of subsection (1)(a) of this section apply
to a conviction of:
(a) A Class B felony, except for a violation of ORS 166.429 or
any crime classified as a person felony as that term is defined
in the rules of the Oregon Criminal Justice Commission.
(b) 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.
(c) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
(d) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
(A) Any sex crime; or
(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).
(e) 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.
(f) A violation, whether under state law or local ordinance.
(g) An offense committed before January 1, 1972, that 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 conviction for a state or municipal traffic offense
{ - . - } { + , unless:
(A) The applicant was under 18 years of age at the time of the
offense;
(B) The applicant does not currently hold a commercial driver
license of any class or a commercial instruction driver permit of
any class;
(C) The applicant was not driving a commercial vehicle as
defined in ORS 826.001 at the time of the offense; and
(D) The offense is not driving under the influence of
intoxicants as described in ORS 813.010. + }
(b) { - A person - } { + An applicant + } 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 that has been set aside under this section shall be
considered for the purpose of determining whether this paragraph
is applicable.
(c) { - A person - } { + An applicant + } 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) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to:
(a) Criminal mistreatment in the second degree under ORS
163.200 if the victim at the time of the crime was 65 years of
age or older; and
(b) Criminal mistreatment in the first degree under ORS 163.205
if the victim at the time of the crime was 65 years of age or
older.
(8) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to
criminally negligent homicide under ORS 163.145, when that
offense was punishable as a Class C felony.
(9) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section apply to a
conviction for a Class B felony described in subsection (5)(a) of
this section only if:
(a) Twenty years or more have elapsed from the date of the
conviction sought to be set aside or of the release of the
{ - person - } { + applicant + } from imprisonment for the
conviction sought to be set aside, whichever is later; and
(b) The { - person - } { + applicant + } has not been
convicted of or arrested for any other offense, excluding motor
vehicle violations, after the date the { - person - }
{ + applicant + } was convicted of the offense sought to be set
aside. Notwithstanding subsection (1) of this section, a
conviction or arrest that has been set aside under this section
shall be considered for the purpose of determining whether this
paragraph is applicable.
(10) The provisions of subsection (1)(b) of this section do not
apply to:
(a) { - A person - } { + An applicant + } 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.
(b) An arrest for driving while under the influence of
intoxicants if the charge is dismissed as a result of the
{ - person's - } { + applicant's + } successful completion of
a diversion agreement described in ORS 813.200.
(11) The provisions of subsection (1) of this section apply to
convictions and arrests that occurred before, as well as those
that occurred after, September 9, 1971. There is no time limit
for making an application.
(12) 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 do 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.
(13) 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 has no other
effect on the orders setting aside the conviction or the arrest
record.
(14) 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 - } { + applicant + } 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) Attempted robbery in the second degree, ORS 164.405.
(k) Robbery in the third degree, ORS 164.395.
(L) Supplying contraband, ORS 162.185.
(m) Unlawful use of a weapon, ORS 166.220.
(15) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
SECTION 2. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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